prodeep-wodeyar-v-state-of-karnataka-405016.pdf - Live Law

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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1288 of 2021

Pradeep S. Wodeyar … Appellant

Versus

The State of Karnataka …Respondent

With


And with


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J U D G M E N T

Dr. Dhananjaya Y Chandrachud,J.

Contents

A. The Facts ............................................................................................................................. 3

B. The Submissions ................................................................................................................13

C. The Analysis .......................................................................................................................17

C.1 The power to take cognizance .....................................................................................17

C.2 Special Court‟s power to take cognizance ..................................................................19

C.2.1 Section 465 CrPC and interlocutory orders ..........................................................30

C 2.2 Section 465 CrPC and failure of Justice ...............................................................35

C.3 Cognizance of the offence and not the offender ........................................................41

C.4 Cognizance by the Special Court of offences under the IPC .....................................47

C.4.1 Joint trial and express repeal ................................................................................51

C.4.2 Joint trial and implied repeal .................................................................................54

C.5 Cognizance order and non-application of mind .........................................................58

C.6 „Authorised person‟ and Section 22 of MMDR Act .....................................................67

C.7 Vicarious liability and Section 23 of MMDR Act ..........................................................74

D. The Conclusion ..................................................................................................................78

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A. The Facts

1. A Single Judge of the High Court of Karnataka dismissed two petitions

instituted by the appellants for quashing the criminal proceedings initiated against

them in Special CC No.599/2015 (arising out of Crime No.21/2014) for offences

punishable under the provisions of Sections 409 and 420 read with Section 120B

IPC, Sections 21 and 23 read with Sections 4(1) and 4(1)(A) of the Mines and

Mineral (Development and Regulation) Act 19571 and Rule 165 read with Rule 144

of the Karnataka Forest Rules 1969.

2. Pradeep S. Wodeyar, who is the Managing Director of a Company by the

name of Canara Overseas Limited is arraigned as the first accused2 and is the

appellant in the appeal arising out of SLP (Criminal) No138/2021. Lakshminarayan

Gubba, who is a director of the said company has been arraigned as the second

accused3 and is the appellant in the appeal arising out of SLP (Criminal)

No.1448/2021.

3. An overview of the criminal case needs to be noticed.

4. On 1 June 2009, Canara Overseas Limited, a Company dealing in exports

and imports is alleged to have entered into an agreement with K. Ramappa, the third

accused4, who is the owner of Mineral Miners and Traders, Bellary for the purpose

of exporting iron ore. In pursuance of the agreement, the company purchased

31,650.65 metric tons (MTs) of iron ore from A-3, of which 20,000 metric tons were

1 “MMDR Act”

2 “A-1”

3 “A-2”

4 “A-3”

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exported to China between the period of 1 January 2009 to 31 May 2010, while the

remaining iron ore was sold to two other companies in India. These transactions are

alleged to have been carried out through, or at Belekere Port in Karnataka. It has

been alleged that the transportation and export of iron ore was carried out in the

absence of permits from the Forest Department and the Department of Mines and

Geology. The iron ore involved in the transactions is alleged to have been removed

from the Mining Lease No.921/2553, Kallahari Village, Bellary. The fourth Accused5

is allegedly the mine owner while the fifth accused6 is their agent. The iron ore is

alleged to have been stocked in an unauthorized stockyard without bulk permits

from the department of Mines and Geology and to have been transported without an

authorized forest way pass. Acting in conspiracy, the accused are alleged to have

caused a loss of Rs.3,27,83,379/- to the state exchequer.

5. Persistent complaints were made on large-scale illegal mining and

transportation of iron ore, and illegal encroachment in forest areas for the purpose of

illegal mining. Samaj Parivartna Samudaya filed a Petition7 under article 32 before

this Court regarding illegal mining in the forest areas in Andhra Pradesh and

Karnataka. The Central Empowered Committee8, pursuant to an order of this Court

dated 19 November 2010 submitted a report on 7 January, 2011 regarding six

mining leases in the Bellary Reserve Forests, Ananthapur, Andhra Pradesh. This

Court by an order dated 25 February 2011 directed the CEC to submit its report in

5 “A-4”

6 “A-5”

7 Writ Petition (Civil) No. 562/2009

8 “CEC”

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respect of the allegations of illegal mining in Karnataka. Pursuant to the order, the

CEC filed five reports on illegal mining. Following the submission of the report of the

CEC dated 3 February 2012 raising concerns over illegal mining, transportation, sale

and export of iron ore in the districts of Bellary, Chitradurga and Tumkur, directions

were issued by his Court on 16 September 2013 for an investigation by the CBI. The

purport of the directions of this Court was as follows:

(i) CBI was permitted to register criminal cases against those exporters in

respect of whom a preliminary enquiry had been conducted, involving export

of more than 50,000 MTs of iron ore without valid permits;

(ii) CBI was permitted to refer the cases of exporters who had exported less than

50,000 MTs and had not been enquired in the preliminary enquiry (PE), to the

Government of Karnataka for taking necessary action in accordance with

relevant laws;

(iii) CBI was permitted to refer to the Government of Karnataka for initiating action

against exporters who had been enquired into in the PE and had exported

less than 50,000 MTs of iron ore without valid permits; and

(iv) The Government of Karnataka was directed to take action under relevant law

as recommended by the CEC in its report dated 5 September 2012 with

regard to those exporters who had exported less than 50,000 MTs and report

compliance.

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6. On 22 November 2013, the Government of Karnataka entrusted the above

cases in terms of the orders of this Court for further investigation and criminal

proceedings to the Lokayukta Police. On 21 January 2014, the state government

issued a notification authorizing several officers, including the Inspector of Police, as

‗authorized persons‘ for the purpose of sub-sections (3) and (4) of Section 21 and

Section 22 of the MMDR Act and Rules 43(3) and 46 of the Karnataka Minor Mineral

Concession Rules, 1994. On 24 January 2014, the Government of Karnataka

constituted a Special Investigation Team9 in the Karnataka Lokayukta for

investigation of illegal mining among other purposes. The SIT included the Inspector

of Police. On 29 May 2014, the Home Department of the Government of the

Karnataka declared, in pursuance of Section 2(s) of the Criminal Procedure Code,10

that the office of the Inspector General of Police, SIT, Karnataka Lokayukta shall be

a police station for the purpose of the said clause and, power and jurisdiction in

respect of the offences of illegal mining of minerals/minor minerals as defined in

Section 3 of the MMDR Act was conferred. The text of the notification is extracted

below:

―In exercise of the powers conferred by clause (s) of Section

2 of the Code of Criminal Procedure, 1973 (Central Act 2 of

1974), the Government of Karnataka hereby declare that with

effect from the date of publication of this notification in the

Official Gazette, the office of Inspector General of Police,

Special Investigation Team, Karnataka Lokayuktha,

Bangalore shall be a Police Station for the purpose of the said

clause with jurisdiction throughout the State of Karnataka and

shall have powers and jurisdiction in respect of the offences

of illegal mining of "minerals" and "minor minerals" as defined

9 “SIT”

10 “CrPC”

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under Section 3 of the Mines and Minerals (Regulation and

Development) Act, 1957 (Central Act 6 7 of 1957) committed

under the provisions of the following Acts and the

corresponding rules, if any, made thereunder namely:-

1. Indian Penal Code, 1860

2. Prevention of Corruption Act, 1988

3. The Karnataka Forest Act, 1962

4. Any other offence under any other relevant Act committed

either in furtherance of or in violation of the above mentioned

Acts or to undertake illegal mining; and

5. Any other cases of illegal mining entrusted by State

Government.

The Notification shall remain in force for period of two years,

co-terminus with the term of the Special Investigation Team

(SIT).‖

7. On 9 October 2014, an FIR was registered in the first case (Crime

No.21/2014) against the following accused:

(i) G. Lakshminarayan Gubba, Managing Director, Canara Overseas Private

Limited;

(ii) Canara Overseas Private Limited;

(iii) K. Ramappa, owner of M/s Mineral Miners and Traders; and

(iv) Unknown Government Officials and unknown private persons.

8. A final report under Section 173 of the CrPC was submitted on 17 December

2015 against:

(i) Canara Overseas Limited represented by Sri Pradeep S. Wodeyar, Managing

Director (A-1);

(ii) Lakshminarayana Gubba (A-2);

(iii) K. Ramappa (A-3);

(iv) Smt. Shanthalakshmi Jayaram (A-4); and

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(v) J. Mithileshwar (A-5).

9. On 29 December 2015, the Deputy Registrar, City Civil Court, Bengaluru

passed the following order noting that the charge-sheet was submitted on 17

December 2015:

―The charge sheet is submitted by the Inspector of Police, S.I.T. Kamataka Lokayukta, Bengaluru, on 17.12.2015. The offences alleged against the above named accused punishable U/s 409, 420 r/w 120B IPC 21, 23 r/w 4(1), 4(l)(A) of MMDR Act 1957 and Sec. 165 r/w 144 Kamataka Forest Rules 1969. Prays that for the reasons stated therein this Hon'ble Court may be pleased to prosecute the above named accused for the aforesaid offences: 1. F.I.R. Complaint. Crime papers in Cr.No.21/2014 are enclosed. 2. Connected documents are produced. 3. Statements of witnesses are produced. 4. Accused copies are furnished. 5. Connected properties are not produced. 6. Al & A4 are not arrested as per charge sheet. A2, A3 & A5 are on court bail. Place it before the XXIII Addi. City Civil & Sessions Judge and Special Judge for Prevention of Corruption Act for kind orders. Sd/- 29/12/15 Deputy Registrar City Civil Court Bengaluru.‖

10. On 30 December 2015, the 23rd

Additional City Civil Sessions Judge and

Special Judge for Prevention of Corruption Act at Bengaluru City took cognizance

after perusing the final report. A direction was also issued for the registration of the

case against the accused persons and for issuance of summons. The order reads

as follows:

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―Perused the final report. Cognizance is taken against

Accused No. 1 to 5. Register the case against Accused No. 1

to 5. Register the case against Accused No. 1 to 5. Register

the case and issue summons to accused No. 1 to 5

returnable by 16.01.2016.

Sd/-30.12.2015

Special Judge,

Prevention of Corruption Act

Bangalore Urban, Bangalore‖

11. On 20 March 2017, proceedings were instituted before the High Court under

Section 482 CrPC for quashing the criminal proceedings initiated against the

appellants. The appellants sought the quashing of the criminal proceedings on the

following grounds:

(i) A-1 was not involved in the alleged illegal transaction. He was residing in

Indonesia at the relevant point of time. The affairs of the company were

managed by A-2;

(ii) According to the agreement entered into for the transaction, the responsibility

of obtaining the dispatch permit from the concerned Department of Mines and

Geology and to transport the same was on the A-3. Therefore, A-2 could not

be prosecuted for procuring iron ore without the permit;

(iii) The order of the Special Judge taking cognizance does not mention the

offences for which cognizance was taken. Therefore, the cognizance order

reflects non-application of mind; and

(iv) The Special Judge did not have the power to take cognizance of offences

under the MMDR Act without a complaint by the authorized officer in view of

Section 22 of the MMDR Act.

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12. The High Court by its judgment dated 12 November 2020 dismissed the

quashing petitions filed by Pradeep S. Wodeyar (A-1) and Lakshminarayan Gubba

(A-2) on the following grounds:

(i) A-1 is sought to be prosecuted in his capacity as a Managing Director of the

company. Under Section 23 of the MMDR Act every person who at the time

the offence was committed was responsible for the conduct of the business

shall be guilty of the offence. Whether A-1 was personally involved in the

relevant transaction could only be decided during the trial since A1 would

have to prove that the commission of the alleged offence was not within his

knowledge in terms of the proviso to Section 23;

(ii) Though according to the agreement, A-3 was given the responsibility of

obtaining the mineral dispatch permit, A-2 transported the minerals without

insisting on A-3 obtaining the permit;

(iii) The order taking cognizance was passed after considering the SIT report. It

is sufficient if the order reflects application of mind. It is a settled position of

law that an order taking cognizance need not be elaborate, with lengthy

reasoning. It is sufficient if the Special Judge has satisfied himself that there is

sufficient ground for proceeding against the accused person;

(iv) A complaint was filed by the authorized person as required under Section 22

of the MMDR Act based on the SIT report ;

(v) There are similar allegations in the complaint and the SIT report. If the Special

Judge has looked into the SIT report and has satisfied himself that the

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allegations prima facie disclose the commission of the offence, the Special

Judge has taken cognizance of the offence under Section 22 of the MMDR

Act; and

(vi) When a complaint is filed under either Section 200 CrPC or under Section 22

of the MMDR Act, the Court could either take cognizance based on the facts

on record or can refer the complaint for investigation under Section 156(3) of

CrPC or order a fresh enquiry under Section 202 CrPC. Since a detailed

investigation has already been undertaken by the SIT, the Special Court can

consider the SIT report for the purpose of taking cognizance.

13. SLP (Criminal) No.138/2021 and SLP (Criminal) No.1448/2021 were

instituted under Article 136 of the Constitution to challenge the judgment of the High

Court. In the appeal arising out of the companion SLP11

, the appellant is the

proprietor of a concern by the name of TBS Logistics which is involved in the

business of buying, selling and exporting iron ore. The case of the prosecution is

that the appellant entered into a criminal conspiracy with other accused persons, for

purchasing and selling extracted iron ore illegally without mining dispatch permits

and the payment of charges to the Mining and Geological Departments and the

Forest Department. On 9 October 2014, Crime case No.23/2014 was registered with

the police investigation team, Karnataka Lokayukta Bengaluru for offences

punishable under Sections 409, 420 and 471 read with 120B of the IPC, Sections 21

and (4)(1)(A) of the MMDR Act, 1957 and Rules 144 and 165 of the Karnataka

11

SLP (Criminal) No.1923/2021

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Forest Rules, 1959. A charge sheet was submitted on 24 November 2015. The

Special Judge took cognizance on 30 December 2015. The appellant instituted a

petition under Section 482 CrPC for quashing the criminal proceedings. The petition

was dismissed by the High Court on 18 November 2020 for the following reasons:

(i) The argument that the SIT does not have the jurisdiction to investigate into

mining offences is not res integra in view of the judgments of the High Court.

It is a settled position that the SIT has the jurisdiction to register a FIR to

investigate into mining offences;

(ii) An authorized officer filed the complaint before the Special Judge. Therefore,

there is no infirmity in view of the bar contained in Section 22 of the MMDR

Act;

(iii) The order taking cognizance makes it evident that the Special Judge referred

to the FIR, charge-sheet, seizure mahazar and documents collected by the

investigating officer for taking cognizance of the offences. The order reflects

application of mind; and

(iv) The material produced by the SIT prima facie makes out the ingredients of

the offences charged against the petitioner.

14. Since similar issues arise in all the three appeals, they have been heard

together. As stated earlier, in the first two appeals, A-1 and A-2 are before the court.

The companion appeal has been instituted by A-1 (out of 5 accused).

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B. The Submissions

15. It is in this backdrop that it becomes necessary to consider the submissions

which have been urged on behalf of the appellants in support of the three appeals.

16. Mr. Siddharth Dave and Mr Pravin H Parekh, Senior Counsel have led the

arguments on behalf of the appellants. Their submissions have proceeded along the

following lines:

(i) The order of the Special Judge taking cognizance is contrary to law.

Cognizance, it is well settled, has to be taken of the offences and not of the

offender. Yet the Special Judge has acted illegally, without application of mind

in taking cognizance of the accused;

(ii) A-1 (Pradeep S. Wodeyar) cannot be held vicariously liable since:

(a) He was not in-charge of the affairs of the company at the relevant time

during the allegedly illegal transactions;

(b) He was in Indonesia and hence cannot be held personally responsible;

(iii) The Special Court constituted under Section 30(B) of the MMDR Act has

jurisdiction only to try offences for contravention of Section (4)(1) or Section

4(1)(A) of the MMDR Act, punishable under Section 21(1). This power of the

Special Court does not extend to taking cognizance (and conducting trial) of

offences punishable under the IPC;

(iv) Section 193 CrPC bars the Court of Session from taking cognizance of any

offence as a court of original jurisdiction unless the case has been committed

to it by the Magistrate under the Code. The only exception is if it has been

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otherwise expressly provided by the CrPC or by any other law for the time

being in force. There is no specific provision in the MMDR Act or the Code

empowering the Court of Session to take cognizance without an order of

committal by the Magistrate; and

(v) Section 22 of the MMDR Act stipulates that no Court shall take cognizance of

any offence punishable under the Act or any Rules made under it except upon

a written complaint made by a person authorized in this behalf by the Central

Government or the State Government. There was no authorization for the

Inspector of the Lokayukta Police and hence there has been a violation of the

provisions of Section 22.

17. The submissions urged on behalf of the appellants have been opposed by the

State of Karnataka. Mr. Nikhil Goel has urged the following submissions before this

Court:

(i) A-1 was undisputedly the Managing Director of Canara Overseas Private

Limited during the period when the offences were committed. Section 23 of

the MMDR Act incorporates the principle of criminal vicarious liability. The

proviso to Section 23(1) carves out the exception that when it is proved that

the offence was committed without the knowledge of the accused or that he

had exercised all due diligence, he shall not be vicariously liable for the

offences by the company. Establishing the conditions in the proviso, however,

is a matter of trial. Moreover, it is a settled principle that the role of the

Managing Director is distinct since by the very nature of the position, the

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person who occupies it is in-charge of, and responsible for, the conduct of the

business;

(ii) The order of the Deputy Registrar indicates that the entire papers of the

investigation were placed before the Special Judge. Moreover, the order of

the Special Judge indicates that he had perused the charge sheet and

thereafter had taken cognizance and proceeded to issue summons. Hence,

there can be no grievance of non-application of mind. A distinction has to be

drawn in law between cognizance based on complaints under Section 200

CrPC which are not proceeded by an investigation and a complaint proceeded

by a police report. A well-reasoned cognizance order is not required when

cognizance is taken pursuant to a police report since the Magistrate has

enough material before the court to peruse. However, since there is a dearth

of material in a Section 200 CrPC complaint, it is only in such cases that a

cognizance order needs to be well-reasoned to prove application of mind.

Moreover, in the present case, the High Court has after a detailed discussion

come to the conclusion that the summons issued to the appellants contained

details of the offences. Therefore, the accused were aware of the charges

against them. Hence, it cannot be argued that the order issuing summons did

not fulfil the requirement of Section 190 or that cognizance was not validly

taken;

(iii) The mere fact that cognizance was directly taken by the Sessions Court, in

itself, would not be sufficient to quash the entire criminal proceeding under

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Section 482 CrPC. In view of the constricted role of the Magistrate under

Section 209 at the stage of committal of an offence exclusively triable by the

Sessions Court, the absence of a committal order of the Magistrate is hardly

of any significance unless a failure of justice is shown. In any event, in the

present litigation, the appellants moved the High Court in 2017in order to

challenge the cognizance order of 2015. In the meantime, submissions on the

framing of charges were addressed before the Special Judge. There is

absolutely no material to indicate that a failure of justice has been occasioned

due to the Magistrate not passing an order of committal;

(iv) There is no merit in the submission that there was an absence of delegation

of power under Section 22 of the MMDR Act to file a complaint under Section

21(i):

(a) The Government of Karnataka had issued a specific notification for the

purpose of Section 22 on 21 January 2014, authorizing among others,

the police inspector having jurisdiction over the place; and

(b) The High Court has recorded that a complaint was filed under Section

22 read with Section 21(i) of the MMDR Act and that it contains

allegations identical to those contained in the charge sheet and SIT

report pertaining to offences under the Act.

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C. The Analysis

18. Having adverted to the submissions of the parties, we shall now turn to the

issues raised before this Court.

C.1 The power to take cognizance

19. Chapter XIV of the CrPC is titled ―Conditions Requisite for Initiation of

Proceeding‖. Section 190 empowers the Magistrate to take cognizance of any

offence:

―190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of

the first class, and any Magistrate of the second class

specially empowered in this behalf under sub- section (2),

may take cognizance of any offence-

(a)upon receiving a complaint of facts which constitute such

offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a

police officer, or upon his own knowledge, that such offence

has been committed.

(2) The Chief Judicial Magistrate may empower any

Magistrate of the second class to take cognizance under sub-

section (1) of such offences as are within his competence to

inquire into or try.‖

20. Clauses (a), (b) and (c) of sub-section (1) of Section 190 contemplate

cognizance being taken by a Magistrate of an offence by any of the following three

modes, namely upon:

(i) the Magistrate receiving a complaint of facts which constitute an offence;

(ii) a police report of such facts; and

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(iii) information received from any person other than a police officer or upon his

own knowledge that an offence has been committed.

21. Section 193 reads as follows:

―193. Cognizance of offences by Courts of Session. Except

as otherwise expressly provided by this Code or by any other

law for the time being in force, no Court of Session shall take

cognizance of any offence as a Court of original jurisdiction

unless the case has been committed to it by a Magistrate

under this Code.‖

Section 193 stipulates that unless the case has been committed by a Magistrate to

the Sessions Court under the Code, no Court of Session shall take cognizance of

any offence. But there are two exceptions to this formulation, namely, where:

(i) the CrPC has made an express provision to the contrary; and

(ii) an express provision to the contrary is contained in ―any other law for the time

being in force‖.

The bar in Section 193 is to the Sessions Court taking cognizance of an offence, as

a court of original jurisdiction unless the case has been committed to it by the

Magistrate under the Code.

22. Section 209 states that when a case is instituted either on a police report or

otherwise, and it appears to the Magistrate that the offence is exclusively triable by

the Sessions Court, he shall commit the case to the Court of Session. Section 209

reads as follows:

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―209. Commitment of case to Court of Session when offence

is triable exclusively by it. When in a case instituted on a

police report or otherwise, the accused appears or is brought

before the Magistrate and it appears to the Magistrate that the

offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of section 207

or section 208, as the case may be, the case to the Court of

Session, and subject to the provisions of this Code relating to

bail, remand the accused to custody until such commitment

has been made;]

(b) subject to the provisions of this Code relating to bail,

remand the accused to custody during, and until the

conclusion of, the trial;

(c) send to that Court the record of the case and the

documents and articles, if any, which are to be produced in

evidence;

(d) notify the Public Prosecutor of the commitment of the case

to the Court of Session.‖

C.2 Special Court‟s power to take cognizance

23. The counsel for the appellant contended that the Special Court (which is a

Sessions Court) is not empowered to take cognizance of offences without the case

being committed to it, in view of Section 193 CrPC. Since the Magistrate did not

commit the case to the Special Court before it took cognizance of the offences in the

instant case, it has been contended that the order taking cognizance is vitiated. As

stated in the earlier section of the judgment, Section 193 is subject to two

exceptions- (a) provisions to the contrary under the CrPC; (b) provisions to the

contrary under any other law.

24. Reference was made to Section 36A(1)(d) of the National Drugs and

Psychotropic Substances Act 198512

, Section 5 of the Prevention of Corruption Act

12

“NSPS Act”

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198813

and Section 16(1) of the National Investigation Agency Act 200814

which

specifically empower the Special Court to take cognizance of offences without the

accused being committed to it for trial. It was contended that since neither the Code

nor the statute specifically empower the Special Court to take cognizance of the

offence without committal, the exercise of power by the Special Court to take

cognizance is without jurisdiction.

25. Before we address the merits of this contention, we find it imperative to refer

to the judgments of this Court on the interpretation of Section 193 CrPC. The

decision of a two judge Bench in Gangula Ashok v. State of AP15

arose out of a

complaint lodged under the Schedule Castes and the Scheduled Tribes (Prevention

of Atrocities) Act 198916

against the appellants. The police filed a charge-sheet upon

investigation directly before the Sessions Court. The Sessions Court is designated

as a Special Court for trial of offences under the Act. Charges were framed by the

Special Judge. The High Court was moved for quashing the charges and the

charge-sheet. The Single Judge held that the Special Judge had no jurisdiction to

take cognizance of the offence under the Act without the case being committed to it

and accordingly set aside the proceedings. The High Court directed the charge-

sheet and connected papers to be returned to the police officer who was directed to

present it before the JMFC for the purpose of committal and the Special Court was

directed on committal to frame appropriate charges. The order of the High Court was

13

“PC Act” 14

“NIA Act” 15

(2000) 2 SCC 504 16

“SC and ST Act”

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questioned in appeal before this Court. The first issue which arose was whether the

Special Judge could have taken cognizance ‗straightway without the case being

committed‘ by the Magistrate. The Special Court under the SC and ST Act was a

Court of Sessions, having regard to Section 14 of the Act. After setting out the

provision of Section 1417

, Justice KT Thomas observed that the Special Court under

the Act was constituted only for the ‗speedy trial‘ of offences which is different from

an ‗inquiry‘. In this context, it was observed:

―8…So it is for trial of the offences under the Act that a

particular Court of Session in each district is sought to be

specified as a Special Court. Though the word ―trial‖ is not

defined either in the Code or in the Act it is clearly

distinguishable from inquiry. The word ―inquiry‖ is defined in

Section 2(g) of the Code as ―every inquiry, other than a trial,

conducted under this Code by a Magistrate or court‖. So the

trial is distinct from inquiry and inquiry must always be a

forerunner to the trial. The Act contemplates only the trial to

be conducted by the Special Court. The added reason for

specifying a Court of Session as a Special Court is to ensure

speed for such trial. ―Special Court‖ is defined in the Act as ―a

Court of Session specified as a Special Court in Section 14‖

[vide Section 2(1)(d)].‖

After analyzing the provision of Sections 4(2) and 193 of the CrPC this Court

observed that there is no express provision by which the Special Court can take

cognizance of the offence without committal; nor can this be inferred. It was further

observed that since the Sessions Court is placed higher in the hierarchical court

structure, the legislature intentionally relieved it from performing preliminary

formalities:

17

―For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act‖.

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―10 [..] The word ―expressly‖ which is employed in Section

193 denoting those exceptions is indicative of the legislative

mandate that a Court of Session can depart from the interdict

contained in the section only if it is provided differently in clear

and unambiguous terms. In other words, unless it is positively

and specifically provided differently no Court of Session can

take cognizance of any offence directly, without the case

being committed to it by a Magistrate.

11. Neither in the Code nor in the Act is there any provision

whatsoever, not even by implication, that the specified Court

of Session (Special Court) can take cognizance of the offence

under the Act as a court of original jurisdiction without the

case being committed to it by a Magistrate. If that be so, there

is no reason to think that the charge-sheet or a complaint can

straight away be filed before such Special Court for offences

under the Act. It can be discerned from the hierarchical

settings of criminal courts that the Court of Session is given a

superior and special status. Hence we think that the

legislature would have thoughtfully relieved the Court of

Session from the work of performing all the preliminary

formalities which Magistrates have to do until the case is

committed to the Court of Session.‖

26. Consequently, it was held that a Special Court under the SC and ST Act is

essentially a court of Sessions and it cannot take cognizance of the offence without

the case being committed to it by the Magistrate in accordance with the provisions of

the CrPC. In other words, the complaint or a chargesheet could not straightway be

laid down before the Special Court. In this backdrop, this Court upheld the view of

the High Court setting aside the proceedings initiated by the Special Court.

27. In State of MP v. Bhooraji18

, the appellant was convicted inter alia of an

offence punishable under Section 302/149 of the IPC read with Section 3(2) of the

SC and ST Act. Since the charge sheet was filed under Section 3(2) of the SC and

St Act together with offences under the IPC, the appellants were tried by a Special

18

(2001) 7 SCC 679

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Judge constituted under the SC and ST Act. The appellant was convicted. An

appeal was filed before the High Court against the conviction. During the pendency

of the appeal, this Court decided Gangula Ashok (supra). An interlocutory

application was filed by the appellants seeking the trial proceedings to be quashed

since the Special Court took cognizance without the case being committed to it by

the Magistrate. The High Court allowed the application and directed the charge

sheet and connected papers to be returned to the police who were directed to

present it before the Magistrate for the purpose of committal. In appeal, this Court

referred to Section 465(1) of the Code which states that no finding shall be reversed

on account of irregularity unless there is a failure of justice. The Bench compared

the provision on committal to the Sessions Court by the Magistrate19

, before and

after the enactment of the Code of 1973. Before 1973, the committal Court could

examine witnesses and records before deciding to commit the case to the Court of

Sessions. However, after 1973, the only examination that the Magistrate has to

undertake for the exercise of the committal power is to determine whether the case

is exclusively triable by the Court of Sessions. Highlighting the change in the role of

the committing court after 1973, the Bench observed that the accused would

achieve no ‗advantage‘ by sending the case back to the Magistrate for committal:

―18. It is apposite to remember that during the period prior to

the Code of Criminal Procedure, 1973, the committal court, in

police charge-sheeted cases, could examine material

witnesses, and such records also had to be sent over to the

Court of Session along with the committal order. But after

1973, the committal court, in police charge-sheeted cases,

19

Sections 207 and 207A of the Old Code, and Section 209 of the new Code

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cannot examine any witness at all. The Magistrate in such

cases has only to commit the cases involving offences

exclusively triable by the Court of Session. Perhaps it would

have been possible for an accused to raise a contention

before 1973 that skipping committal proceedings had

deprived him of the opportunity to cross-examine witnesses in

the committal court and that had caused prejudice to his

defence. But even that is not available to an accused after

1973 in cases charge-sheeted by the police. We repeatedly

asked the learned counsel for the accused to tell us what

advantage the accused would secure if the case is sent back

to the Magistrate's Court merely for the purpose of

retransmission of the records to the Sessions Court through a

committal order. We did not get any satisfactory answer to the

above query put to the counsel.

28. A contention was also raised on the ground that Section 465 would only be

applicable where the order has been passed by a ‗court of competent jurisdiction‘,

and that the Court of Sessions is not a competent court before the case is

committed to it. Rejecting this argument, it was observed that the phrase ―court of

competent jurisdiction‖ denotes a validly constituted court conferred with the

jurisdiction to try the offence and an irregularity in the procedure would not denude

the competence of the court. The Bench further distinguished the decision in

Gangula Ashok (supra) on the ground that there the trial was yet to begin as

opposed to this case where the challenge was after the accused was convicted. On

these reasons, the appeal was allowed.

29. In Moly v. State of Kerala20

and Vidyadharan v. State of Kerala21

, the

accused was convicted under the SC and ST Act and provisions of the IPC. The

appeal against the conviction was dismissed by the Kerala High Court. Before this

20

(2004) 4 SCC 584 21

(2004) 1 SCC 215

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Court, it was contended that the Sessions Court could not have taken cognizance

without committal by the Magistrate. Relying on Gangula Ashok (supra), it was

held that the Court of Sessions could not have taken cognizance and the order of

conviction was set aside.

30. In Rattiram v. State of Madhya Pradesh22

, a three judge Bench of this

Court dealt with a divergence of views, in Moly (supra) and Vidhyadharan (supra)

on one hand, and Bhooraji (supra) on the another, on the effect of not committing

an accused in terms of Section 193 of the CrPC, in cases where a chargesheet is

filed under the SC and ST Act and cognizance is directly taken by the Special

Judge. Justice Dipak Misra (as the learned Chief Justice then was) delivered the

judgment of the three judge Bench to resolve the conflict of opinions. The Court

was to decide on the issue of whether the cognizance order passed by the Special

Court without committal of proceedings could be held to vitiate the proceedings

after the trial is completed:

“14. The demonstrable facet of the discord is that if

cognizance is directly taken by the Special Judge under the

Act and an accused without assailing the same at the

inception allows the trial to continue and invites a

judgment of conviction, would he be permitted in law to

question the same and seek quashment of the conviction on

the bedrock that the trial Judge had no jurisdiction or authority

to take cognizance without the case being committed to it and

thereby violated the mandate enshrined under Section 193 of

the Code.‖

(emphasis supplied)

22

(2012) 4 SCC 516

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31. The Bench answered the question in the negative by holding that the trial will

not be vitiated due to an irregularity in the cognizance order for the following

reasons:

(i) Section 207 and Section 207A of the Code of 1898 enunciated an exhaustive

procedure which was to be followed by the Magistrate before committing the

case to the Court of Sessions. The CrPC of 1973 made a departure from the

provisions of the erstwhile Code of 1898 under which ―the accused enjoyed a

substantial right prior to committal of the case‖ which is ―indeed a vital stage‖.

In marked contrast, under the CrPC of 1973 the Magistrate ―is only required to

see whether the offences are exclusively triable by the Court of Sessions‖.

Noticing the clear distinction between the earlier Code of 1898 and the CrPC

of 1973, the Court held that ―there is sea of difference‖ between the two

provisions and there was nothing in Section 209 of the CrPC of 1973 which

would even remotely suggest that the protections as provided under the old

Code have been telescoped to the existing one‖. In this backdrop, the Court

held that in view of the restricted role of the Magistrate in committal

proceedings, absence of committal would not lead to a failure of justice;

(ii) A criminal proceeding must endeavor to conform to the principles of a ‗speedy

trial‘ and ‗protection of the victim of the crime‘. Since the objection was not

raised at the time of framing of charges but only after the conviction, the

failure of justice must be proved to be overbearing compared to the right of

the victim and right of speedy trial which was not proved in this case;

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(iii) Moly (supra) and Vidhyadharan (supra) are per incuriam. Bhooraji (supra)

has been correctly decided; and

(iv) In Gangula Ashok (supra), the trial had not commenced as compared to the

other cases where the trial had completed and the accused were convicted.

The accused did not wait for the trial to commence before challenging the

cognizance order.

32. It may be noted that Section 14 of the SC and ST Act has been substituted by

Act 1 of 2016 with effect from 26 January 2016. The proviso to Section 14(1),

following the amendment, stipulates that the Special Court shall have the power to

directly take cognizance of offences under the Act. Recently, a Division Bench of

this Court in Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari23

interpreted the proviso to Section 14 of the SC and ST Act. In that case, FIR was

filed for offences punishable under the SC/ST Act and provisions of the Penal Code.

The Judicial Magistrate took cognizance of the offences and issued process under

Section 204 and then committed the case to the Special Court. An application was

filed before the High Court seeking to quash the FIR and summons order. It was

contended that in view of the proviso to Section 14 of the SC and ST Act, the

Magistrate had no power to take cognizance of offences under the Act. The High

Court allowed the application and quashed the proceedings on the ground that the

proviso to Section 14 ousts the jurisdiction of the Magistrate to take cognizance. On

appeal, a two judge bench of this Court set aside the judgment of the High Court by

23

Criminal Appeal No.967 of 2021

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holding that the proviso to Section 14 of the SC and ST Act does not oust the power

of the Magistrate to take cognizance, but it provides the power to take cognizance to

the Special Court in addition to the Magistrate,. While reversing the judgment of the

High Court, Justice M R Shah, speaking for the two judge Bench, observed:

(i) Section 14 does not take away the jurisdiction of the Magistrate to take

cognizance and commit the case to the Special Court for trial. The words

used in amended Section 14 are ―Court so established or specified shall have

power to directly take cognizance of the offences under this Court”. The word,

‗only´ is missing; and

(ii) In view of the provisions of Section 460 CrPC, the act of the Magistrate in

taking cognizance could at the highest be held to be irregular and would not

vitiate the proceedings.

33. The judgements on the interpretation of Section 193 CrPC may for the

purpose of analysis be divided into two categories based on the time frame of

challenge: (i) cases involving a challenge to the cognizance order before and after

the commencement of trial, that is, before the completion of the trial; and (ii) cases

involving a challenge to the cognizance order after the completion of the trial.

Gangula Ashok (supra) and Shantaben (supra) fall within the first category, while

Rattiram (supra), Moly (supra), Bhooraji (supra) and Vidhyadharan (supra) fall

within the second category. In both Bhooraji (supra) and Rattiram (supra), though it

was observed that the cognizance order is irregular, it was held not to vitiate the

proceedings since there was no ‗failure of justice‘ that could be proved in view of

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Section 465 CrPC. However, in Gangula Ashok (supra), the challenge to the

cognizance order was made before the commencement of the trial.

34. Section 193 CrPC states that the Sessions Court shall not take cognizance of

an offence as a Court of original jurisdiction unless the Magistrate commits the case

to it. The only exception is if it is expressly provided otherwise by the Code or the

statute. Neither the Code nor the MMDR Act provide that the Special Court could

directly take cognizance of the offences. Therefore, the Sessions Court did not have

the authority to take cognizance. Section 209 CrPC provides the Magistrate the

power to commit the case. In Dharam Pal v. State of Haryana, a Constitution

Bench 24

, while discussing whether the committing court was required under Section

209 to take cognizance of the offence before committing the case to the Court of

Sessions, held that the Magistrate could either commit the case before or after

taking cognizance. In this case, the Special Court has directly taken cognizance. It

now needs to be determined if this irregularity in the cognizance order vitiates the

entire proceedings for the order to be quashed and set aside.

35. Thus, the issue before us is two-fold: (i) whether the principle encompassed in

Section 465 CrPC would be applicable to orders passed at the pre-trial stage; and

(ii) If the answer to (i) is in the affirmative, whether order taking cognizance would

lead to a ‗failure of justice‘ if it were not to be quashed.

24

(2014) 3 SCC 306

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C.2.1 Section 465 CrPC and interlocutory orders

36. Section 465 CrPC reads as below:

―465. Finding or sentence when reversible by reason of

error, omission or irregularity.—(1) Subject to the

provisions hereinbefore contained, no finding, sentence or

order passed by a Court of competent jurisdiction shall be

reversed or altered by a Court of appeal, confirmation of

revision on account of any error, omission or irregularity in

the complaint, summons, warrant, proclamation, order,

judgment or other proceedings before or during trial or in

any inquiry or other proceedings under this Code, or any

error, or irregularity in any sanction for the prosecution,

unless in the opinion of that Court, a failure of justice has in

fact been occasioned thereby;

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.” (emphasis supplied)

The general principle which is embodied in Section 465 CrPC is that a finding or

order is not reversible due to irregularities unless a ‗failure of justice‘ is proved. Sub-

section (2) of Section 465 provides that while determining whether there has been a

failure of justice, the appellate Court shall have regard to whether the objection

regarding the irregularity could and should have been raised at an earlier stage in

the proceeding. The observation in Rattiram (supra) distinguishing Gangula Ashok

(supra) on the basis of the stage of the trial thus takes its support from Section

465(2) of the Code where a classification is sought to be made on the basis of the

challenge vis-à-vis the stage of the proceedings.

37. Section 465 stipulates that the order passed by a Court of competent

jurisdiction shall not be reversed or altered by a Court of appeal on account of an

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irregularity of the proceedings before trial or any inquiry. It is settled law that

cognizance is pre-trial or inquiry stage.25

Therefore, irregularity of a cognizance

order is covered by the provision. In order to determine if the provision applies to

pre-trial orders like an irregular cognizance order or only applies to orders of

conviction or acquittal, it is necessary that we interpret the provision contextually.

38. Chapter XXXV of the CrPC is titled Irregular Proceedings‖. Section 46026

on

the one hand provides for those irregularities if any, on the part of a Magistrate

which do not vitiate proceedings. Section 46127

, on the other hand, contains a list of

proceedings by the Magistrate who is not empowered by law in this behalf, which

25

Gangula Ashok v. State of A.P, (2000) 2 SCC 504; Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, where a Constitution Bench held that trial begins after framing of charge 26

460. Irregularities which do not vitiate proceedings. If any Magistrate not empowered by law to do any of the following things, namely:- (a) to issue a search- warrant under section 94; (b) to order, under section 155, the police to investigate an offence; (c) to hold an inquest under section 176; (d) to issue process under section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; (e) to take cognizance of an offence under clause (a) or clause (b) of sub- section (1) of section 190; (f) to make over a case under sub- section (2) of section 192; (g) to tender a pardon under section 306; (h) to recall a case and try it himself under section 410; or (i) to sell property under section 458 or section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. 27

461. Irregularities which vitiate proceedings. If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under section 83; (b) issues a search- warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190 (l) tries an offender; (m) tries an offender summarily; (n) passes a sentence, under section 325, on proceedings recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446, his proceedings shall be void.

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would vitiate the proceedings. Clause (e) of Section 460 relates to the taking of

cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section

190 CrPC. Clause (a) of section 190(1) refers to the receipt of a complaint of facts

constituting an offence and clause (b) refers to a police report of the facts.

Consequently, where a Magistrate who is not empowered by law takes cognizance

of an offence either under clause (a) or clause (b) of Section 190(1) erroneously

though in good faith, the proceedings will not be set aside merely on the ground that

the Magistrate was not so empowered. In other words, for vitiating the proceedings,

something more than a mere lack of authority has to be established. Clause (k) of

Section 461 adverts to a situation where a Magistrate who is not empowered takes

cognizance of an offence under clause (c) of Section 190(1). Section 190(1)(c)

empowers the Magistrate to take cognizance upon information received from a

person other than a police officer or upon his own knowledge. The taking of

cognizance under Section 190(1)(c) by a Magistrate who is not empowered, renders

the proceedings void.

39. Section 462 relates to proceedings being taken in a wrong place; Section 463

with the non-compliance of the provisions of Section 16428

or Section 28129

and

Section 464 with the effect of an omission to frame, or absence of or error in a

charge. Section 465 deals with irregularity of ―the complaint, summons, warrant,

proclamation, order, judgment or other proceedings before or during trial‖.

28

Recording of confessions and statements 29

Record of examination of accused

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40. The overarching purpose of Chapter XXXV CrPC, as is evident from a

reading of Sections 460 to 466, is to prevent irregularities that do not go to the root

of the case from delaying the proceedings. Sections 462-464 lay down specific

irregularities which would not vitiate the proceedings. Section 465 on the other hand

is a broad residuary provision that covers all irregularities that are not covered by the

above provisions. This is evident from the initial words of Section 465, namely,

―Subject to the provisions hereinabove contained‖. Therefore, irregular proceedings

that are not covered under Sections 461-464 could be covered under Section 465. It

is also evident that the theme of ‗failure of justice‘, uniformly guides all the provisions

in the Chapter. There is no indication in Section 465 and in Sections 462-464 that

the provisions only apply to orders of conviction or acquittal. All the provisions use

the words ―finding, sentence or order‖. Though one of the major causes of judicial

delay is the delay caused from the commencement of the trial to its conclusion,

there is no denying that delay is also predominantly caused in the pre-trial stage.

Every interlocutory order is challenged and is on appeal till the Supreme Court, on

grounds of minor irregularities that do not go to the root of the case. The object of

Chapter XXXV of the CrPC is not only to prevent the delay in the conclusion of

proceedings after the trial has commenced or concluded, but also to curb the delay

at the pre-trial stage. It has been recognized by a multitude of judgments of this

Court that the accused often uses delaying tactics to prolong the proceedings and

prevent the commencement or conclusion of the trial.30

The object of Chapter XXXV

30

AR Antulay v. RR Nayak, 1988 AIR 1531

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is to further the constitutionally recognized principle of speedy trial. This was

highlighted by Justice Jeevan Reddy while writing for a two judge Bench in

Santhosh De v. Archana Guha where the learned judge observed31

:

―15. The facts of this case impel us to say how easy it has

become today to delay the trial of criminal cases. An accused

so minded can stall the proceedings for decades together, if

he has the means to do so. Any and every single interlocutory

order is challenged in the superior Courts and the superior

Courts, we are pained to say, are falling prey to their

stratagems. We expect the superior Courts to resist all such

attempts. Unless a grave illegality is committed, the superior

Courts should not interfere. They should allow the Court

which is seized of the matter to go on with it. There is always

an appellate Court to correct the errors. One should keep in

mind the principle behind Section 465 Cr. P.C. That any and

every irregularity or infraction of a procedural provision cannot

constitute a ground for interference by a superior Court

unless such irregularity or infraction has caused irreparable

prejudice to the party and requires to be corrected at that

stage itself, because such frequent interference by superior

Court at the interlocutory stages tends to defeat the ends of

Justice instead of serving those ends. It should not be that a

man with enough means is able to keep the law at bay. That

would mean the failure of the very system.‖

41. Section 465 would also be applicable to challenges to interlocutory orders

such as a cognizance order or summons order on the ground of irregularity of

procedure. This interpretation is supported by sub-section (2) to Section 465 which

states that while determining if the irregularity has occasioned a failure of justice, the

Court shall have regard to whether the objection could or should have been raised at

an earlier stage in the proceeding. Therefore, the very fact that the statute provides

that the Court is to consider if the objection could have been raised earlier, without

31

AIR 1994 SC 1229

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any specific mention of the stage of the trial, indicates that the provision covers

challenges raised at any stage. The Court according to sub-Section (2) is to

determine if the objection was raised at the earliest.

C 2.2 Section 465 CrPC and failure of Justice

42. Rattiram (supra), had distinguished Gangula Ashok32

(supra) on the basis of

the stage of the proceedings since the trial had not begun in the latter but was

completed in the former. Rattiram (supra) does not hold that Section 465 CrPC

would not be applicable to pre-trial cases. The differentiation between trial and pre-

trial cases was made only with reference to sub-Section (2) of Section 465. Since

the cognizance order was challenged after the trial was over, the accused could not

prove failure of justice in view of Section 465(2). However, Section 465(2) only

provides one of the factors that shall be considered while determining if there has

been a failure of justice. Section 465(2) by corollary does not mean that if the

alleged irregularity is challenged at an earlier stage, the failure of justice is deemed

to be proved. Even in such cases though, where the challenge is made before the

trial begins, the party has the burden of proving a ‗failure of justice‘. Further, even if

the challenge is made before the trial begins, the Court still needs to determine if the

challenge could have been made earlier.

43. The test established for determining if there has been a failure of justice for

the purpose of Section 465 is whether the irregularity has caused prejudice to the

32

It is to be noted that no discussion on the applicability of Section 465 CrPC was made in Gangula Ashok

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accused.33

No straitjacket formula can be applied. However, while determining if

there was a failure of justice, the Courts could decide with reference to inter alia the

stage of challenge, the seriousness of the offence charged, and apparent intention

to prolong proceedings. It must be determined if the failure of justice would override

the concern of delay in the conclusion of the proceedings and the objective of the

provision to curb the menace of frivolous litigation.

44. It needs to be determined if condoning the irregularity of the cognizance order

under Section 465 would lead to a ‗failure of justice‘. In our considered opinion, it

would not lead to a failure of justice for the following reasons:

(i) The diminished role of the committing Court under Section 209 of the new

Code while committing the case to the Court of Session. Both the decision in

Bhooraji (supra) as well as the subsequent decision in Ratiram (supra)

notice that under the Code of 1898, the Magistrate had a broad power at the

stage of committal which included the power to examine witnesses and to

allow cross-examination. Such a power is noticeably absent in the provisions

of Section 209 of the CrPC. On the contrary, Section 209 makes it

abundantly clear that when a case is instituted on the basis of a police report

or otherwise and it appears to the Magistrate that the offence is triable

exclusively by the Court of Sessions, the Magistrate shall commit the case to

the Court of Sessions after complying with the provisions of Section 207 or

Section 208, as the case may be. The circumstance to which the Magistrate

33

Anna Reddy Sambvisa Reddy v. State of A.P, AIR 2009 SC 2661

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has to apply their mind is solely whether the offence is triable exclusively by

the Court of Sessions. Since the committing Magistrate does not have wide

discretionary powers to exercise at this stage not exercising it would not

cause any injustice to the parties;

(ii) Gradation in irregularity of cognizance order under Sections 460 and 461-

Under Sections 460 and 461, the order taking cognizance based on a police

report has been given a greater standing as compared to an order taking

cognizance based on information received from any person other than a

police officer or upon the own knowledge of the Magistrate, for the specific

purpose of deciding on the irregularity of the order. The reason behind the

gradation is because in the former case, the Magistrate has material based

on an investigation by the police to ground his decision which may be absent

when cognizance is taken based on information by any other person. In this

case, cognizance was taken based on the SIT report. Therefore, the case

squarely falls under Section 190(b) of CrPC which under Section 460, even if

irregular would not vitiate the proceedings;

(iii) Objective of the MMDR Act: The appellants are accused of the commission

of offences under the MMDR Act involving the export and transportation of

minerals without permit. Offences under the MMDR Act are environmental

crimes. These crimes impact upon society at large. These offences cause a

detriment to and affect the well-being of the entire community. Environmental

crime is not confined within geographical or state limits. The impact of

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environmental crime transcends borders and time. Environmental crime may

or may not have an immediately identifiable human victim but there can be

no mistaking its consequence for the entire bio-system of which human

beings are an intrinsic, but not the only, element. Environmental crime is in

essence a planetary crime – it affects every component of the natural

systems with which the planet has been endowed. They constitute our

heritage; a heritage which is held in trust by the present for the future. Illegal

mining denudes the eco-system of valuable resources. The destruction of the

natural environment has serious consequences for the present and the

future. The MMDR Act must hence be construed in this perspective. At one

level, illegal mining deprives the state of its revenues. But the law is not

merely a revenue yielding or regulating measure. The essence of the law is

to protect human kind and every species whose existence depends on

natural resources from the destruction which is caused by rapacious and

unregulated mining. The offences which have been taken into account by

Parliament while enacting sub-sections (1) and (1A) of Section 4 intrinsically

affect the environment which, in turn, affects the existence of communities

who depend on the environment and of every species to whom it provides

nurture and sustenance. It is because of the wide-ranging impact of such

offences on the life of the community and on the well-being of not only the

present, but of the succeeding generations, that principles such as the

precautionary principle, the public trust doctrine and the concept of

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sustainable development have gained a sure jurisprudential foundation. In

environmental crime, there may be no single, immediate victim. The act

which predicates the offence is a crime against humanity. These crimes

might not be perceived in the present to have immediate, foreseeable or

quantifiable repercussions but there is no mistaking that they impact the life

of future generations;

(iv) The Preamble of the Act at the time of its enactment indicated that it is an

―Act for regulation of mines and the development of minerals‖. This was

substituted by Act 38 of 1999 to emphasise that the ―Act provides for the

development and regulation of mines and minerals‖. The amendment to the

Preamble is indicative of the intent of the legislature that development and

regulation must proceed hand-in-hand, and in order to reduce the increasing

magnitude of environmental crime, development needs to be regulated and

sustainable. Thus, when Parliament amended the MMDR Act to include

Section 30B in 2015 for the constitution of Special Courts which would be

deemed to be Courts of Session conferred with all requisite powers, the

object and purpose of the legislative provision must be borne in mind. The

ultimate object of the provision is to ensure that violators are punished by a

speedy process of trial before a court duly constituted in that behalf; and

(v) The delay in the commencement of trial - The First Information Report was

registered on 9 October 2014 in the first of the batch of cases in the present

set of cases. The charge-sheet was submitted on 29 December 2015.

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Between December 2015 and March 2017, the accused participated in the

proceedings. On 30 December 2015, the Special Judge recorded that he had

perused the final report and that he was taking cognizance. Summons were

directed to be issued to the accused. After cognizance was taken on 30

December 2015, several proceedings took place before 23rd

Additional City

Civil and Sessions Judge/Special Judge, Bengaluru City including on 16

January 2016 when some of the accused were admitted to bail. On 17 March

2017, arguments were addressed before the Special Judge by the Special

Public Prosecutor on the charges. The High Court was moved for quashing

under Section 482 CrPC on 20 March 2017 at that stage. Significantly in the

proceedings before the High Court, no ground of challenge was addressed

on the basis of the submission (now urged before this Court) that in the

absence of a committal order by the Magistrate, the proceedings before the

Special Judge suffered for want of jurisdiction. The submission which has

been urged before this Court for the first time, purportedly on the ground that

a pure question of law is involved, cannot efface the factual position that from

the date of the submission of the charge sheet in 2015 until the filing of the

quashing petition on 20 March 2017, the accused participated in the

proceedings before the Special Judge and raised no objection at any time

either before the Special Judge or before the High Court. Therefore, the

challenge to the irregularity in taking cognizance was not made at the

earliest. Though it was made before the conclusion of the trial, the challenge

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after two years would still amount to a considerable delay, when there were

opportunities for it to have been raised earlier.

C.3 Cognizance of the offence and not the offender

45. It is a well settled principle of law that cognizance as envisaged in Section

190 of the CrPC is of the offence and not of the offender. The expression

―cognizance of any offence‖ is consistently used in the provisions of Sections 190,

191, 192 and 19334

.

46. Section 193 of the old CrPC Code (of 1898) stated that Court of Session shall

not take cognizance of any offence unless the ‗accused has been committed’ to it by

the Magistrate. However, Section 193 of the CrPC 1973 states that cognizance of an

offence shall be taken after the ‗case has been committed’ to it by the Magistrate. A

comparison of the provisions in the Old and New Code is tabulated below:

Old Code (1898) New Code (1973)

193. Cognizance of offences by Courts of

Session.—Except as otherwise expressly

provided by this Code or by any other law for the

time being in force, no Court of Session shall

take cognizance of any offence as a Court of

original jurisdiction unless the accused has

been committed to it by a Magistrate duly

empowered in that behalf.

193. Cognizance of offences by Courts of

Session.—Except as otherwise expressly

provided by this Code or by any other law for the

time being in force, no Court of Session shall

take cognizance of any offence as a Court of

original jurisdiction unless the case has been

committed to it by a Magistrate under this

Code.

(emphasis supplied)

34

―As a matter of fact, the expression ―cognizance of any offence‖ is also used in Section 195, 196, 197, 198, 198A, 198B, 199. Chapter 15 of the CrPC which governs complaints of Magistrates also emphasises the principle that cognizance is of an offence. The same principle, as we have seen earlier, is emphasised in Chapter 16 in which Section 204(1) adverts to a Magistrate ―taking cognizance of an offence‖.

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47. In Kishun Singh v. State of Bihar35

, the question before the Court was

whether the Court of Sessions to which a case has been committed to for trial by the

Magistrate, can without recording evidence, summon a person not named in the

police report by exercise of its power under Section 319 CrPC. The two judge Bench

held that when a case is committed to the Court of Sessions by the Magistrate under

Section 209 on the ground that it is exclusively triable by it, the Sessions Court

would have the power to take cognizance of the offence.36

It was thus held that

since cognizance is taken of the offence and not the accused, if any material

suggests the complicity of other persons in the offence, the Court of Sessions can

summon such other persons. The court, by drawing a comparison between Section

193 of the Code of 1973 and the Code of 1898, and on a reading of Section 209

CrPC held that both the committal and cognizance is of the offence and not the

accused/offender.37

Justice AM Ahmadi (as the learned Chief Justice then was)

summarized the position in law in the following observations:

―7. […] Section 190 of the Code sets out the different ways in

which a Magistrate can take cognizance of an offence, that is

to say, take notice of an allegation disclosing commission of a

crime with a view to setting the law in motion to bring the

offender to book. Under this provision cognizance can be

taken in three ways enumerated in clauses (a), (b) and (c) of

the offence alleged to have been committed. The object is to

ensure the safety of a citizen against the vagaries of the

police by giving him the right to approach the Magistrate

directly if the police does not take action or he has reason to

35

(1993) 2 SCC 16 36

Also see, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492 (at 499, paragraphs 19 and 20); Fakhruddin Ahmad v. State of Uttaranchal, (2008) 17 SCC 157 (at 163, paragraph 17) 37

In arriving at the above conclusion, this Court in Kishun Singh affirmed the judgment of a Full Bench of the Punjab High Court in SK Lutfur Rahman v. State: 1985 PLJR 640: 1985 Cri LJ 1238(Pat HC) (FB)

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believe that no such action will be taken by the police. Even

though the expression ‗take cognizance‘ is not defined, it is

well settled by a catena of decisions of this Court that when

the Magistrate takes notice of the accusations and applies his

mind to the allegations made in the complaint or police report

or information and on being satisfied that the allegations, if

proved, would constitute an offence decides to initiate judicial

proceedings against the alleged offender he is said to have

taken cognizance of the offence. It is essential to bear in mind

the fact that cognizance is in regard to the offence and not the

offender.

[…]

It may immediately be noticed that under the old provision a

Court of Session could not take cognizance of an offence as

a court of original jurisdiction unless the accused was

committed to it whereas under the recast section as it

presently stands the expression the accused has been

replaced by the words the case. As has been pointed out

earlier, under Section 190 cognizance has to be taken for the

offence and not the offender; so also under Section 193 the

emphasis now is to the committal of the case and no more

on the offender. So also Section 209 speaks of

committing the case to the Court of Session. On a conjoint

reading of these provisions it becomes clear that while under

the old Code in view of the language of Section 193 unless an

accused was committed to the Court of Session the said court

could not take cognizance of an offence as a court of original

jurisdiction; now under Section 193 as it presently stands

once the case is committed the restriction disappears.‖

―16…Thus, on a plain reading of Section 193, as it presently

stands once the case is committed to the Court of Session by

a Magistrate under the Code, the restriction placed on the

power of the Court of Session to take cognizance of an

offence as a court of original jurisdiction gets lifted. On the

Magistrate committing the case under Section 209 to the

Court of Session the bar of Section 193 is lifted thereby

investing the Court of Session complete and unfettered

jurisdiction of the court of original jurisdiction to take

cognizance of the offence which would include the

summoning of the person or persons whose complicity in the

commission of the crime can prima facie be gathered from the

material available on record.‖

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48. In other words, upon the committal by the Magistrate, the Court of Sessions is

empowered to take cognizance of the whole of the incident constituting the offence.

The Court of Sessions is thus invested with the complete jurisdiction to summon any

individual accused of the crime. The above principles were reiterated in a two judge

Bench decision in State of W.B. v. Mohd. Khalid38

. Justice S Mohan speaking for

the Court observed:

―43.[…] Section 190 of the Code talks of cognizance of

offences by Magistrates. This expression has not been

defined in the Code. In its broad and literal sense, it means

taking notice of an offence. This would include the intention of

initiating judicial proceedings against the offender in respect

of that offence or taking steps to see whether there is any

basis for initiating judicial proceedings or for other purposes.

The word ‗cognizance‘ indicates the point when a Magistrate

or a Judge first takes judicial notice of an offence. It is entirely

a different thing from initiation of proceedings; rather it is the

condition precedent to the initiation of proceedings by the

Magistrate or the Judge. Cognizance is taken of cases and

not of persons.‖

49. In Dharam Pal (supra), a Constitution Bench was deciding on whether the

Court of Sessions has the power under Section 193 CrPC to take cognizance of the

offence and then summon other persons not mentioned as accused in the police

report. The issue was referred to a five-judge Bench in view of the conflicting

decisions in Kishun Singh (supra) and Ranjit Singh v. State of Punjab39

. As

discussed above, while in Kishun Singh (supra), it was held that the Sessions

Court held such a power under Section 193 CrPC, it was held in Ranjit Singh

(supra) that from the stage of committal till the Sessions Court reaches the stage

38

(1995) 1 SCC 684 39

(1998) 7 SCC 149

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indicated in Section 230 CrPC, the Court could not arraign any other person as the

accused. Chief Justice Altamas Kabir, speaking for the Constitution Bench affirmed

the view in Kishun Singh (supra) on the ground that the Magistrate before whom

the final report is submitted has ample powers to disagree with the report filed by the

police under Section 173(2) and to proceed against the accused persons de hors

the police report. However, if the interpretation in Ranjit Singh (supra) were to be

followed, it would lead to an anomaly where the Sessions Court would not have this

power till the Section 319 stage is reached, which the Magistrate would otherwise

have. In that context, the Constitution Bench observed:

―35. In our view, the Magistrate has a role to play while

committing the case to the Court of Session upon taking

cognizance on the police report submitted before him under

Section 173(2) CrPC. In the event the Magistrate disagrees

with the police report, he has two choices. He may act on the

basis of a protest petition that may be filed, or he may, while

disagreeing with the police report, issue process and summon

the accused. Thereafter, if on being satisfied that a case had

been made out to proceed against the persons named in

column 2 of the report, proceed to try the said persons or if he

was satisfied that a case had been made out which was

triable by the Court of Session, he may commit the case to

the Court of Session to proceed further in the matter.‖

50. In RN Agarwal v. RC Bansal40

, a Special Judge took cognizance of the

offences punishable under Sections 120-B, 420, 468 and 471 IPC as well as Section

13(1)(d) of the Prevention of Corruption Act. The Special Judge however,

summoned the prosecution witnesses. The prosecution witnesses approached the

High Court under Section 482 CrPC seeking to quash the summons issued against

them. The High Court quashed the summons order passed by the Special Judge. 40

(2015) 1 SCC 48

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This Court allowed the appeal holding that the Special Judge in view of Sections 193

and 209, took cognizance of the offence and therefore had the power to arraign

other accused in the case based on the material available before it at that stage.

51. It is evident from the discussion in Kishun Singh (supra) and Dharam Pal

(supra) that in view of the provisions of Section 193 CrPC, cognizance is taken of

the offence and not the offender. Thus, the Magistrate or the Special Judge does not

have the power to take cognizance of the accused. The purpose of taking

cognizance of the offence instead of the accused is because the crime is committed

against the society at large. Therefore, the grievance of the State is against the

commission of the offence and not the offender. The offender as an actor is targeted

in the criminal procedure to provide punishments so as to prevent or reduce the

crime through different methods such as reformation, retribution and deterrence.

Cognizance is thus taken against the offence and not the accused since the

legislative intent is to prevent crime. The accused is a means to reach the end of

preventing and addressing the commission of crime.

52. In the factual matrix before us, the Special Judge by an order dated 30

December 2015 referred to all the relevant material before him, including the FIR

and witness statements, before taking cognizance. The question that arises is

whether merely because the cognizance order mentions that cognizance is taken

against the ‗accused‘, the entire proceedings would be vitiated. The order taking

cognizance inadvertently mentioned that the Special Judge has taken cognizance

against the accused instead of the offence. This would not vitiate the entire

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proceedings, particularly where material information on the commission of the

offence had been brought to the notice of and had been perused by the Special

Judge.

53. In order to prove that the irregularity vitiates the proceeding, the accused

must prove a ‗failure of justice‘ as prescribed under Section 465 CrPC. In view of the

discussion in the previous section on the applicability of Section 465 CrPC (and the

inability to prove failure of justice) to the cognizance order, the irregularity would not

vitiate the proceedings. Moreover, bearing in mind the objective behind prescribing

that cognizance has to be taken of the offence and not the offender, a mere change

in the form of the cognizance order would not alter the effect of the order for any

injustice to be meted out.

C.4 Cognizance by the Special Court of offences under the IPC

54. The appellant had raised a contention that even if the Special Judge had the

power to take cognizance of the offence, he could only have taken cognizance of

offences under the MMDR Act and could not have taken cognizance (and conduct

trial) of the offences under the provisions of IPC. For this purpose, the counsel for

the appellant referred to Section 30B(1) of the MMDR Act which states that the State

Government may for providing speedy trial of offences under Sections 4(1) or

Section 4(1A) of the MMDR Act constitute Special Courts. Section 30B(1) reads as

follows:

―30B. Constitution of Special Courts.―(1) The State

Government may, for the purposes of providing speedy trial of

offences for contravention of the provisions of sub-section (1)

or sub-section (1A) of section 4, constitute, by notification, as

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many Special Courts as may be necessary for such area or

areas, as may be specified in the notification.‖

Section 4(1) of the MMDR Act states that no person shall undertake any

reconnaissance, prospecting or mining operations without any license or permit.

Section 4(1A) states that no person can transport or store material otherwise than in

accordance with the provisions of this Act. Section 4(1) and (1A) of the Act read as

follows:

―4. Prospecting or mining operations to be under licence or

lease.―(1) [No person shall undertake any reconnaissance,

prospecting or mining operations in any area, except under

and in accordance with the terms and conditions of a

reconnaissance permit or of a prospecting licence or, as the

case may be, of a mining lease, granted under this Act and

the rules made thereunder]:

Provided that nothing in this sub-section shall affect any

prospecting or mining operations undertaken in any area in

accordance with terms and conditions of a prospecting

licence or mining lease granted before the commencement of

this Act which is in force at such commencement:

[Provided further that nothing in this sub-section shall apply to

any prospecting operations undertaken by the Geological

Survey of India, the Indian Bureau of Mines, 6 [the Atomic

Minerals Directorate for Exploration and Research] of the

Department of Atomic Energy of the Central Government, the

Directorates of Mining and Geology of any State Government

(by whatever name called), and the Mineral Exploration

Corporation Limited., a Government company within the

meaning of 7 [clause (45) of section 2 of the Companies Act,

2013 (18 of 2013), and any such entity that may be notified

for this purpose by the Central Government]:]

[Provided also that nothing in this sub-section shall apply to

any mining lease (whether called mining lease mining

concession or by any other name) in force immediately before

the commencement of this Act in the Union territory of Goa,

Daman and Diu.]

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[(1A) No person shall transport or store or cause to be

transported or stored any mineral otherwise than in

accordance with the provisions of this Act and the rules made

thereunder.]‖

55. It is contended by the appellant that the Special Court established under a

statute can try offences under the IPC (or any offence other than the offences under

the statute) only if expressly provided. To buttress this argument, Section 4(3) of the

PC Act, Section 14(1) of the NIA Act, and Section 28(2) of the Protection of Children

from Sexual Offences Act 201241

were referred to. All the three provisions expressly

provide the Special Court with the power to try offences other than those offences

specified in the Act. Section 4(3) of the PC Act reads as follows:

―(3) When trying any case, a special Judge may also try

any offence, other than an offence specified in section 3,

with which the accused may, under the Code of Criminal

Procedure, 1973 (2 of 1974), be charged at the same trial.‖

(emphasis supplied)

Section 14 of the NIA Act read as follows:

―14. Powers of Special Courts with respect to other

offences.—(1) When trying any offence, a Special Court

may also try any other offence with which the accused

may, under the Code be charged, at the same trial if the

offence is connected with such other offence.

(2) If, in the course of any trial under this Act of any offence, it

is found that the accused person has committed any other

offence under this Act or under any other law, the Special

Court may convict such person of such other offence and

pass any sentence or award punishment authorised by this

Act or, as the case may be, under such other law.‖

(emphasis supplied)

41

“POCSO Act”

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Section 28(2) of the POCSO Act provides the following:

―(2) While trying an offence under this Act, a Special Court

shall also try an offence [other than the offence referred to

in sub-section (1)], with which the accused may, under the

Code of Criminal Procedure,1973 (2 of 1974) be charged at

the same trial.‖

(emphasis supplied)

56. In the case before us, the Special Judge took cognizance and issued

summons against the appellants for offences under Sections 409, 420 read with

Section 120B IPC; Sections 21 and 23 read with Sections 4(1), 4(1A) of the MMDR

Act; and Rule 165 read with Rule 144 of the Karnataka Forest Rules, 1969.

According to the first schedule of the CrPC, the offences under Sections 409 and

420 are triable by the Magistrate of the First Class. Section 209 CrPC states that if it

appears to the Magistrate that the offence is triable exclusively by the Court of

Sessions, then he shall commit the case to the Court of Session. Section 2(hc) of

the MMDR Act states that a Special Court constituted under Section 30 B(1) of the

Act is deemed to be the Court of Sessions. A Special Court designated under the

MMDR Act is a Court of Sessions which is exclusively vested with the power to try

offences under the Act. While the offences under Sections 409 and 420 IPC are

triable by the Judicial Magistrate First Class42

, the issue is whether the offences

under the IPC can be tried jointly with the offences under the MMDR Act by the

Special Court.

42

“JMFC”

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C.4.1 Joint trial and express repeal

57. At this juncture, it is relevant to take note of Section 220 CrPC. Section 220

envisages situations when a person shall be tried for multiple offences at one trial

which reads as follows:

―220. Trial for more than one offence.—(1) If, in one series of

acts so connected together as to form the same transaction,

more offences than one are committed by the same person,

he may be charged with, and tried at one trial for, every such

offence.

(2) When a person charged with one or more offences of

criminal breach of trust or dishonest misappropriation of

property as provided in sub-section (2) of section 212 or in

sub-section (1) of section 219, is accused of committing, for

the purpose of facilitating or concealing the commission of

that offence or those offences, one or more offences of

falsification of accounts, he may be charged with, and tried at

one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two

or more separate definitions of any law in force for the time

being by which offences are defined or punished, the person

accused of them may be charged with, and tried at one trial

for, each of such offences.

(4) If several acts, of which one or more than one would by

itself or themselves constitute an offence, constitute when

combined a different offence, the person accused of them

may be charged with, and tried at one trial for the offence

constituted by such acts when combined, and for any offence

constituted by any one, or more, of such acts.

(5) Nothing contained in this section shall affect section 71 of

the Indian Penal Code (45 of 1860).‖

58. Section 409 IPC deals with the offence of Criminal breach of trust by a public

servant, banker, or agent, while Section 420 IPC deals with cheating. Since both

these offences are alleged to have been committed in the course of the same

transaction as the offences under the MMDR Act, the situation is squarely covered

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by sub-section (1) of Section 220 of CrPC. It now needs to be determined if Section

220 CrPC can be applied to proceedings before the Special Court constituted under

the MMDR Act.

59. Section 4(1) CrPC states that all offences under the IPC shall be investigated

and tried according to the provisions contained in the CrPC. Section 4(2) states that

all offences under any other law shall be investigated and tried according to the

same provisions, subject to any other enactment that regulates the manner of

investigation and trial. Section 5 states that nothing in the Code shall affect any

special law that confers power, and jurisdiction, unless there is a specific provision

to the contrary. Section 30C of the MMDR Act stipulates that unless otherwise

provided by the Act, the CrPC shall apply to the proceedings before the Special

Court. Section 30C reads as follows:

―30C. Special Courts to have powers of Court of

Session.―Save as otherwise provided in this Act, the

Code of Criminal Procedure, 1973 (2 of 1974), shall apply

to the proceedings before the Special Court and for the

purpose of the provisions of this Act, the Special Court shall

be deemed to be a Court of Session and shall have all

powers of a Court of Session and the person conducting a

prosecution before the Special Court shall be deemed to be a

public prosecutor.‖

(emphasis supplied)

60. Therefore, on a combined reading of Sections 4 and 5 of CrPC along with

Section 30C of the MMDR Act, it is apparent that the procedure prescribed under

the Code shall be applicable to proceedings before the Special Court unless the

MMDR Act provides anything to the contrary. These provisions incorporate the

principle of express repeal – i.e., unless any provision of the CrPC is expressly

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repealed by the provisions of the MMDR Act, the procedure prescribed under the

CrPC would apply to the proceedings before the Special Court. Provisions of the PC

Act, POCSO Act and NIA Act which expressly provide that the Special Court may try

offences under the statute along with other offences is only clarificatory. It is settled

law that while contextually interpreting a provision, reference to other statutes which

are pari materia can be made.43

However, since the provisions in the similar statute

on combined trial are only clarificatory, the reference to external aids offer no

support to the argument of the appellant.

61. It now needs to be determined if there is:

(i) an express provision in the MMDR Act that provides that Section 220 CrPC

shall not be applicable; and

(ii) if (i) is in negative, then whether the MMDR Act by necessary implication

excludes the application of Section 220 CrPC.

62. Since there is no express provision that excludes the application of Section

220 CrPC, it needs to be examined if the MMDR Act has by necessary implication

excluded the application of Section 220 CrPC. In this context, it needs to be

determined if Section 30B of the MMDR Act while establishing the Special Court for

offences under Section 4 of the MMDR Act, by necessary implication excludes the

application of Section 220 CrPC.

43

Harshad Mehta v. State of Maharashtra, (2010) 8 SCC 257

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C.4.2 Joint trial and implied repeal

63. The general rule of construction is that there is a presumption against a

repeal by implication because the legislature has full knowledge of the existing law

on the subject matter while enacting a law. When a repealing provision is not

specifically mentioned in the subsequent statute, there is a presumption that the

intention of the legislature was not to repeal the provision. The burden to prove that

the subsequent enactment has impliedly repealed the provision of an earlier

enactment is on the party asserting the argument. This presumption against implied

repeal is rebutted if the provision(s) of the subsequent Act are so inconsistent and

repugnant with the provision(s) of the earlier statute that the two provisions cannot

‗stand together‘.44

Therefore, the test to be applied for the construction of implied

repeal is as follows: Whether the subsequent statute (or provision in the subsequent

statute) is inconsistent and repugnant with the earlier statute (or provision in the

earlier statute) such that both the statutes (or provisions) cannot stand together. 45

The test when applied in the context of this case is whether Section 30B of the

MMDR Act is inconsistent and repugnant to Section 220 CrPC that both the

provisions cannot go hand in hand.

64. This Court has in Municipal Council, Palai v. T.J Joseph46

indicated that the

test applied for determination of repugnancy under Article 254 of the Indian

44

Harshad Mehta (n 40); Justice GP Singh, Principles of Statutory Interpretation (14th ed. LexisNexis 2016) 737-738

45 Also see, State of Orissa v. M/s M.A. Tulloch, AIR 1964 SC 1284; Syndicate Bank v. Prabha D. Naik, (2001) 4 SCC

713; State of MP v. Kedia Leather & Liqour Limited, (2003) 7 SCC 389; Lal Shah Baba Dargah Trust v. Magnum Developers, (2015) 17 SCC 65; 46

AIR 1963 SC 1561.

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Constitution maybe applied to determine repugnancy in the context of implied repeal

as well. Justice Mudholkar writing for a three judge Bench, followed the test that was

laid down in Deep Chand v. State of Uttar Pradesh47

:

―10. […] (i) Whether there is direct conflict between the two

provisions;

(ii) Whether the legislature intended to lay down an

exhaustive code in respect of the subject-matter replacing the

earlier law;

(iii) Whether the two laws occupy the same field.‖

65. In the decision in Harshad Mehta v. State of Maharashtra48

, the issue before

this Court was whether the Special Court established under the Special Court (Trial

of Offences relating to Transactions in Securities) Act 1992 has the power to grant

pardon as under Sections 306 and 307 CrPC49

. Therefore, the question in essence

was whether Sections 306 and 307 CrPC apply to the proceedings before the

Special Court constituted under the Special Court Act 1992. Section 9(2) of the

Special Court Act 1992 stated that the provisions of the CrPC would be applicable to

the proceedings before the Special Court, unless the Special Court Act 1992

provides anything to the contrary. It was held by the three judge Bench of this Court

that there was no express provision (or inference by necessary implication that can

be made) excluding the applicability of Sections 306 and 307 CrPC to proceedings

before the Special Court. One of the contentions raised by the counsel for the

appellant was that similar earlier enactments have expressly granted the power to

grant pardon to the Special Court constituted under the Act and that when the

47

(1959) 2 SCR 8 48

(2010) 8 SCC 257 49

Section 306 and 307 CrPC deal with the tendor of pardon by the Court to an accomplice on the condition of making a full and complete disclosure of the circumstances of the offence to the best of his/her knowledge

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legislature has deliberately omitted the inclusion of the provision, it would mean that

the power was not intended to be granted. The counsel contended that the Special

Court under the Act consists of a Judge of the High Court, while Section 306 for the

purpose of the provision only enumerates categories of Magistrates. The Bench

observed that an express provision needs to be made in the subsequent specific

statute only when wider powers or no powers are intended to be given:

―38. It is understandable that if powers wider than the one

contemplated by the Code are intended to be conferred, a

provision to that effect will have to be made. It does not follow

therefrom that in an altogether different statute, if no special

provision is made, an inference can be drawn that even

where the powers under the Code and not wide powers

were intended to be conferred, save and except where it

is so stated specifically, the effect of omission would be

that the Special Court will not have even similar powers

as are exercised by the ordinary criminal courts under

the Code.‖

(emphasis supplied)

Addressing the contention of the appellant that Section 306 uses the term

‗Magistrate‘, while the Special Court consists of High Court judges, it was held that

the statute and the Code need to be harmoniously construed. On the argument that

other statutes have an express provision providing the power to grant pardon, the

court held that other statutes are an external aid of interpretation and can relied on

only when it is shown that the scheme of the two Acts is similar. The court in this

regard observed as follows:

―51. The Code has been incorporated in the Act by

application of the doctrine of legislation by incorporation. The

power to grant pardon has not been denied expressly or by

necessary implication. As earlier stated after decision in the

case of A.R. Antulay [(1984) 2 SCC 500 (p. 527, para 27) :

1984 SCC (Cri) 277] it was not necessary to make specific

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provision in the Act conferring power on the Special Court to

grant pardon at trial or pre-trial stage. The Special Court is a

court of original criminal jurisdiction and has all the powers of

such a court under the Code, including those of Sections 306

to 308 of the Code, the same not having been excluded

specifically or otherwise.

52. There is no provision in the Act which negates the power

of the Special Court to grant pardon. The Special Court has

power to grant pardon at any stage of the proceedings. The

power under Section 307 cannot be denied merely because

no commitment of the case is made to the Special Court.

Learned Solicitor-General, in our view, rightly contends that

the other statutes are only an external aid to the interpretation

and to rely upon the omission of a provision which is

contained in another different enactment, it has to be shown

that the two Acts are similar which is not the position here.

The scheme of the two Acts is substantially different as has

been earlier noticed by us. It is also evident from Fernandes

case [AIR 1968 SC 594: (1968) 1 SCR 695 : 1968 Cri LJ 550]

as well.‖

C.4.2.1 Section 30B of the MMDR Act and Section 220 CrPC - The question

of implied repeal

66. Section 30B of the MMDR Act provides for the constitution of the Special

Court for ‗speedy trial of offences for contravention of the provisions‘ of Section 4 of

the Act. Does the fact that the Special Court has jurisdiction to try offences under the

MMDR Act oust the jurisdiction of the Special Court to try offences under any other

law (in this case the IPC). As has been noted above, the provisions of the Code may

be held to be impliedly repealed, only if there is a ‗direct conflict‘ between the

provisions such that it is not possible to harmoniously interpret the provisions. It thus

needs to be analysed whether Section 30B of the MMDR Act and Section 220 CrPC

can be harmoniously construed.

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67. The Judicial Magistrate First Class is invested with the authority to try

offences under Sections 409 and 420 IPC. On the other hand, the Sessions Judge is

appointed as a Special Judge for the purposes of the MMDR Act. If the offences

under the MMDR Act and the IPC are tried together by the Special Judge, there

arises no anomaly, for it is not a case where a judge placed lower in the hierarchy

has been artificially vested with the power to try the offences under both the MMDR

Act and the Code. Additionally, if the offences are tried separately by different fora

though they arise out of the same transaction, there would be a multiplicity of

proceedings and wastage of judicial time, and may result in contradictory judgments.

It is a settled principle of law that a construction that permits hardship,

inconvenience, injustice, absurdity and anomaly must be avoided. Section 30B of

the MMDR Act and Section 220 CrPC can be harmoniously construed and such a

construction furthers justice. Therefore, Section 30B cannot be held to impliedly

repeal the application of Section 220 CrPC to the proceedings before the Special

Court.

C.5 Cognizance order and non-application of mind

68. The counsel for the appellant has contended that the order of the Special

Judge taking cognizance has not sufficiently demonstrated application of mind to the

material placed before him. To substantiate this contention, the appellant relied on

the decisions in Pepsi Foods Ltd. v. Special Judicial Magistrate50

, Fakhruddin

50

(1998) 5 SCC 749

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Ahmad v. State of Uttaranchal51

Mehmood Ul Rehman v. Khazir Mohammad

Tunda52

, Sunil Bharti Mittal v. CBI53

and Ravindranatha Bajpe v. Bangalore

Special Economic Zone Ltd.54

. The respondent argued that this Court has made a

distinction on application of mind by the judge for the purpose of taking cognizance

based on a police report on the one hand and a private complaint under Section 200

CrPC on the other, and that the requirement of a demonstrable application of mind

in the latter case is higher. For this purpose, the counsel relied on this Court‘s

decisions in Bhushan Kumar v. State (NCT of Delhi)55

and State of Gujarat v.

Afroz Mohammed Hasanafatta56

.

69. The decision of this Court in Pepsi Foods Ltd. (supra), arose out of the

institution of a complaint filed against the appellants under Section 7 read with

Section 16 of the Prevention of Food Adulteration Act 1964. The allegation in the

complaint was that the appellants sold a bottle of beverage which was adulterated.

After recording primary evidence, the Magistrate passed orders summoning the

appellants. The appellants instituted proceedings before the High Court under

Section 482 CrPC for quashing the summoning order and the proceedings. It was in

this backdrop, that while adverting to the procedure envisaged in Chapter XV of the

CrPC more particularly the provisions of Section 200, Justice DP Wadhwa speaking

for a two judge Bench held:

51

(2008) 17 SCC 157 52

(2015) 12 SCC 420 53

(2015) 4 SCC 609 54

Criminal Appeal Nos. 1047-1048/2021 55

(2012) 5 SCC 424 56

(2019) 20 SCC 539

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―12. […] One of the modes by which a court can take

cognizance of an offence is on filing of a complaint containing

facts which constitutes such offence. A Magistrate taking

cognizance of an offence on complaint shall examine upon

oath the complainant and the witnesses present, if any, and

the substance of such examination shall be reduced to writing

and shall be signed by the complainant and the witnesses,

and also by the Magistrate (Sections 190 and 200 of the

Code).‖

Having noticed that proceeding had been initiated on the basis of a complaint, this

Court held:

―28. Summoning of an accused in a criminal case is a serious

matter. Criminal law cannot be set into motion as a matter of

course. It is not that the complainant has to bring only two

witnesses to support his allegations in the complaint to have

the criminal law set into motion. The order of the Magistrate

summoning the accused must reflect that he has applied his

mind to the facts of the case and the law applicable thereto.

He has to examine the nature of allegations made in the

complaint and the evidence both oral and documentary in

support thereof and would that be sufficient for the

complainant to succeed in bringing charge home to the

accused. It is not that the Magistrate is a silent spectator at

the time of recording of preliminary evidence before

summoning of the accused. The Magistrate has to carefully

scrutinize the evidence brought on record and may even

himself put questions to the complainant and his witnesses to

elicit answers to find out the truthfulness of the allegations or

otherwise and then examine if any offence is prima facie

committed by all or any of the accused.‖

On the facts, the Court held that the allegations against the appellants did not

establish any offence under Section 7 of the Prevention of Food Adulteration Act

and there was no basis in the complaint to make such allegation. Setting aside the

order of the High Court, this Court accordingly quashed the complaint. The genesis

of the decision in Pepsi Foods Ltd is founded on a complaint made to the

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Magistrate upon which steps had been initiated pursuant to the provision of Section

200 of the CrPC.

70. In Sunil Bharti Mittal (supra), the case before this Court arose out of alleged

irregularities in the grant of an additional Spectrum in 2002. The case was being

monitored by this Court. The CBI registered a case and after completion of the

investigation filed a charge-sheet in the court of the Special Judge. The CBI, among

others, mentioned three telecom companies as accused persons in respect of

offences under Section 13(2) read with 13(1)(d) of the PC Act and allied offences.

When the matter was taken up for the issuance of summons to the accused

persons, the Special Judge while recording satisfaction that there was enough

incriminating material to proceed against the accused named in the charge-sheet

also found that three individuals, namely, the CMD, MD and Director of the three

telecom companies were an alter ego of the respective companies. While taking

cognizance of the cases, summons were issued not only to the accused in the

charge-sheet but to the aforesaid three persons as well. Two of them moved this

Court. Justice A K Sikri, while speaking for the three judge Bench, held that before

taking cognizance of an offence, the Magistrate should have applied his mind to the

case to satisfy himself that the allegations would constitute an offence:

―48. Sine qua non for taking cognizance of the offence is the

application of mind by the Magistrate and his satisfaction that

the allegations, if proved, would constitute an offence. It is,

therefore, imperative that on a complaint or on a police report,

the Magistrate is bound to consider the question as to

whether the same discloses commission of an offence and is

required to form such an opinion in this respect. When he

does so and decides to issue process, he shall be said to

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have taken cognizance. At the stage of taking cognizance,

the only consideration before the court remains to consider

judiciously whether the material on which the prosecution

proposes to prosecute the accused brings out a prima facie

case or not.‖

Justice Sikri observed that while the Magistrate is empowered to issue process

against a person who has not been charge-sheeted, there has to be sufficient

material in the police report showing his involvement. The Court held that no such

exercise was carried out by the Special Judge and in its absence, the order

summoning the appellants could not be sustained. The decision in Sunil Bharti

Mittal (supra) arose out of a police report but clearly involved a situation where

appellants had not been arraigned as accused in the charge-sheet. The Magistrate

had issued summons to them merely treating them to be an alter ego of the

company. This Court held that it was a wrong (and a ‗reverse‘) application of the

principle of alter ego and that the order summoning them could not be sustained.

71. In Mehmood Ul Rehman (supra), a complaint was filed by the Respondent

under Section 500 of the Ranbir Penal Code (in pari materia to Section 500 of the

IPC). The Magistrate passed the following order:

―4. […] Perused the complaint, and the statements recorded.

In the first instance of proceedings, let bail warrant to the tune

of Rs 15,000 be issued against the alleged accused persons,

with direction to the accused persons to cause their

appearance before this Court on 22-4-2007, to answer the

material questions.‖

The Respondent filed a petition before the High Court seeking to quash the

proceedings initiated by the Magistrate. The High Court rejected the petition. Before

this Court, a contention was raised that the Magistrate had not applied his mind to

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the complaint to form an opinion on whether the allegations would constitute an

offence. Relying on Pepsi Foods Ltd. (supra), it was observed that the Magistrate

ought to have applied his mind to the allegations and must be satisfied that the facts

alleged would constitute an offence. The order of the Magistrate was set aside by

this Court on the ground that the order did not indicate an application of mind by the

Magistrate. The facts in this case fall squarely within Section 190(1)(a) CrPC since

the Magistrate was only guided by the complaint before him. Moreover, Justice

Kurian Joseph, writing for the two-judge Bench has clearly taken note of the

difference between Section 190(1)(a) and 190(1)(b):

―21. Under Section 190(1)(b) CrPC, the Magistrate has the

advantage of a police report and under Section 190(1)(c)

CrPC, he has the information or knowledge of commission of

an offence. But under Section 190(1)(a) CrPC, he has only a

complaint before him. The Code hence specifies that ―a

complaint of facts which constitute such offence‖. Therefore, if

the complaint, on the face of it, does not disclose the

commission of any offence, the Magistrate shall not take

cognizance under Section 190(1)(a) CrPC. The complaint is

simply to be rejected.‖

72. In Fakruddin Ahmed (supra), a complaint was lodged before the Judicial

Magistrate alleging commission of offences under Sections 240, 467, 468 and 471

IPC. The Magistrate directed the police to register the case and investigate it. The

Magistrate thus, instead of following the procedure laid down under Section 200 or

202 CrPC, ordered that the matter be investigated and a report be submitted under

Section 173(2) of the Code. Based on the police report, cognizance was taken by

the Magistrate. A two-judge Bench of this Court observed that the Magistrate must

apply his mind before taking cognizance of the offence. However, no observation

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was made that the cognizance order based on a police report needs to be ‗well-

reasoned‘. On the facts of the case, the Court held that since the cognizance order

was not placed before the High Court, it did not have the opportunity to review if the

Magistrate had applied his mind while taking cognizance. The matter was thus

remanded back to the High Court for it to peruse the documents and then decide the

Section 482 petition afresh.

73. It must be noted that the decisions in Pepsi Foods Ltd. (supra) and

Mehmood Ul Rehman (supra) arose in the context of a private complaint. Though

the decision in Sunil Bharti Mittal (supra) arose from a police report, it is evident

from the narration of facts in the earlier part of this judgment that in that case, the

charge-sheet had not named the Chief Executive Officers of the Telecom

Companies as accused. The Magistrate, however, furnished the reason that the

CEO was an alter ego of the Telecom Company which, as this Court noted in its

judgment was a ―reverse application‖ of the alter ego doctrine. Similarly, the

cognizance order in Fakruddin Ahmed (supra) was based on a police report.

However, this Court remanded the case back to the High Court for fresh

consideration of the validity of the cognizance order and did not review the

Magistrate‘s satisfaction before issuing the cognizance order. Therefore, none of the

above judgments referred to support the contention of the appellant. Though all the

above judgments mention that the Magistrate needs to apply his mind to the

materials placed before him before taking cognizance, they have been differentiated

on facts from the present case as unlike the present case where cognizance was

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taken based on the SIT report, in those cases cognizance was taken based on a

complaint. The difference in the standard of proof for application of mind with

reference to cognizance based on a complaint and police report has been briefly

discussed in Mehmood Ul Rehman (supra) and Fakruddin Ahmed (supra). A two-

judge Bench of this Court in Afroz Mohammed Hasanfatta (supra) laid down the

law on the difference of the standard of review of the application of mind by the

Judge while taking cognizance based on a police report and a private complaint.

74. In Afroz Mohammed Hasanfatta (supra), a complaint was filed by the

Manager of a Bank against a Private Limited Company alleging that in pursuance of

a conspiracy, the Company was importing rough and polished diamonds from the

foreign market and selling them in the local market. On verification, the bills of entry

were found to be bogus. Based on the complaint, an FIR was registered for offences

under Sections 420, 465, 467, 468, 471, 477A and 120B of the Penal Code. A

charge-sheet was submitted under Section 173 CrPC against two persons and the

respondent was referred to as a suspect. A supplementary charge-sheet was

submitted inter alia against the respondent and based on it, cognizance was taken

by the Magistrate. The High Court set aside the order of the Chief Judicial

Magistrate taking cognizance. Justice Banumathi speaking for the two judge Bench

dealt with the issue as to whether while taking cognizance of an offence under

Section 190(1)(b) CrPC, the Court has to record reasons for its satisfaction before

the issuance of summons. Relying upon the decision in Pepsi Foods Ltd. (supra), it

was urged by the accused that the order for the issuance of process without

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recording reasons was correctly set aside by the High Court. Moreover, it was urged

that there was no application of mind by the Magistrate. While distinguishing the

decision in Pepsi Foods Ltd. (supra) on the ground that it related to taking of

cognizance in a complaint case, the court held since in a case of cognizance based

on a police report, the Magistrate has the advantage of perusing the materials, he is

not required to record reasons:

―23. Insofar as taking cognizance based on the police report

is concerned, the Magistrate has the advantage of the

charge-sheet, statement of witnesses and other evidence

collected by the police during the investigation. Investigating

officer/SHO collects the necessary evidence during the

investigation conducted in compliance with the provisions of

the Criminal Procedure Code and in accordance with the

rules of investigation. Evidence and materials so collected are

sifted at the level of the investigating officer and thereafter,

charge-sheet was filed. In appropriate cases, opinion of the

Public Prosecutor is also obtained before filing the charge-

sheet. The court thus has the advantage of the police report

along with the materials placed before it by the police. Under

Section 190(1)(b) CrPC, where the Magistrate has taken

cognizance of an offence upon a police report and the

Magistrate is satisfied that there is sufficient ground for

proceeding, the Magistrate directs issuance of process.

In case of taking cognizance of an offence based upon

the police report, the Magistrate is not required to record

reasons for issuing the process. In cases instituted on a

police report, the Magistrate is only required to pass an

order issuing summons to the accused. Such an order of

issuing summons to the accused is based upon satisfaction of

the Magistrate considering the police report and other

documents and satisfying himself that there is sufficient

ground for proceeding against the accused. In a case based

upon the police report, at the stage of issuing the summons to

the accused, the Magistrate is not required to record any

reason. In case, if the charge-sheet is barred by law or where

there is lack of jurisdiction or when the charge-sheet is

rejected or not taken on file, then the Magistrate is required to

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record his reasons for rejection of the charge-sheet and for

not taking it on file.‖

(emphasis supplied)

75. The Special Judge, it must be noted, took cognizance on the basis of a report

submitted under Section 173 CrPC and not on the basis of a private complaint.

Therefore, the case is squarely covered by the decision in Afroz Mohammed

Hasanfatta (supra). The Special Judge took note of the FIR, the witness

statements, and connected documents before taking cognizance of the offence. In

this backdrop, it would be far-fetched to fault the order of the Special Judge on the

ground that it does not adduce detailed reasons for taking cognizance or that it does

not indicate that an application of mind. In the facts of this case, therefore, the order

taking cognizance is not erroneous.

C.6 „Authorised person‟ and Section 22 of MMDR Act

76. Section 22 of the MMDR Act stipulates that no Court shall take cognizance of

any offence punishable under this Act or Rules, except upon a complaint made in

writing by a person authorised on that behalf by the Central or the State

Government. It has been contended by the appellant that before the Special Court

(Sessions Court) took cognizance of the offence, no complaint was filed by the

authorised person.

77. In State (NCT of Delhi) v. Sanjay57

, the principal question which was

formulated for the decision of a two judge Bench was whether the Magistrate has

the power to take cognizance of the offence upon a police report without a complaint

57

(2014) 9 SCC 772

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from the authorised person under Section 22 of the MMDR Act. Justice M Y Eqbal,

delivering the judgment for the two-judge Bench, held that Section 22 only bars the

prosecution and cognizance of offences for contravention of Section 4 of the MMDR

Act without a written complaint and not for offences under the provisions of the IPC.

The court also noted the object and policy underlying the MMDR Act in the context

of environmental protection. The Court observed:

―62. Sub-section (1-A) of Section 4 of the MMDR Act puts a

restriction in transporting and storing any mineral otherwise

than in accordance with the provisions of the Act and the

Rules made thereunder. In other words no person will do

mining activity without a valid lease or licence. Section 21 is a

penal provision according to which if a person contravenes

the provisions of sub-section (1-A) of Section 4, he shall be

prosecuted and punished in the manner and procedure

provided in the Act. Sub-section (6) has been inserted in

Section 4 by amendment making the offence cognizable

notwithstanding anything contained in the Code of Criminal

Procedure, 1973. Section 22 of the Act puts a restriction on

the court to take cognizance of any offence punishable under

the Act or any Rule made thereunder except upon a

complaint made by a person authorised in this behalf. It is

very important to note that Section 21 does not begin with a

non obstante clause. Instead of the words ―notwithstanding

anything contained in any law for the time being in force no

court shall take cognizance….‖, the section begins with the

words ―no court shall take cognizance of any offence.

[…]

70. There cannot be any dispute with regard to restrictions

imposed under the MMDR Act and remedy provided therein.

In any case, where there is a mining activity by any person in

contravention of the provisions of Section 4 and other

sections of the Act, the officer empowered and authorised

under the Act shall exercise all the powers including making a

complaint before the Jurisdictional Magistrate. It is also not in

dispute that the Magistrate shall in such cases take

cognizance on the basis of the complaint filed before it by a

duly authorised officer. In case of breach and violation of

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Section 4 and other provisions of the Act, the police officer

cannot insist the Magistrate for taking cognizance under the

Act on the basis of the record submitted by the police alleging

contravention of the said Act. In other words, the prohibition

contained in Section 22 of the Act against prosecution of a

person except on a complaint made by the officer is attracted

only when such person is sought to be prosecuted for

contravention of Section 4 of the Act and not for any act or

omission which constitutes an offence under the Penal Code.‖

In view of the above discussion, the Court held: -

(i) The ingredients constituting an offence under the MMDR Act and the

ingredients of the offences under the IPC are distinct; and

(ii) For the commission of an offence under the IPC, on receipt of a police

report, the Magistrate having jurisdiction can take cognizance without

awaiting a complaint by the authorized officer. A complaint is required in

terms of Section 22 only for taking cognizance in respect of a violation of

the provisions of the MMDR Act.

78. In Kanwar Pal Singh v. The State of Uttar Pradesh58

, a two judge Bench

has followed the earlier decision in Sanjay (supra). In Jayant v. The State of

Madhya Pradesh59

, the appeal before this Court arose from a decision of the High

Court rejecting the application under Section 482 CrPC for quashing FIRs alleging

the commission of offences under Sections 379 and 414 IPC, Sections 4/21 of the

MMDR Act and Rule 18 of the M.P. Minerals (Prevention of illegal Mining,

Transportation and Storage) Rules, 2006. The JMFC, taking note of the information

and the decision of this Court in Sanjay (supra) exercised powers under Section

58

(2020) 14 SCC 331 59

(2021) 2 SCC 670

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156(3) CrPC and directed the registration of a criminal case for investigation. FIRs

were registered on the basis of the order passed by the Magistrate. The High Court

was moved under Section 482 CrPC for quashing the FIRs on the basis of the bar

contained in Section 22 of the MMDR Act. The petitions for quashing were

dismissed on the basis of the decision in Sanjay (supra). After adverting to the

decision in Sanjay (supra), Justice M R Shah, speaking for a two-judge Bench of

this Court, noted that the prohibition contained in Section 22 of the MMDR Act

against the prosecution of a person except on a written complaint of the authorised

officer is attracted only when the prosecution is for contravention of Section 4 of the

MMDR Act and would not apply in respect of an act or omission which constitutes an

offence under Penal Code. The court observed that the bar under Section 22 of the

Act kicks in with regard to the offence under Section 4 of the MMDR Act only when

the Magistrate purports to take cognizance of the offence and not when the

Magistrate orders further investigation under Section 156(3) CrPC. Referring a

complaint for investigation under Section 156(3) would be at the pre-cognizance

stage. Justice M R Shah observed: -

―16…Therefore, when an order is passed by the Magistrate

for investigation to be made by the police under Section

156(3) of the Code, which the learned Magistrate did in the

instant case, when such an order is made the police is

obliged to investigate the case and submit a report under

Section 173(2) of the Code. That thereafter the investigating

officer is required to send report to the authorised officer and

thereafter as envisaged under Section 22 of the MMDR Act

the authorised officer as mentioned in Section 22 of the

MMDR Act may file the complaint before the learned

Magistrate along with the report submitted by the

investigating officer and at that stage the question with

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respect to taking cognizance by the learned Magistrate would

arise.‖

The conclusions which were arrived at by the Court were as follows:

―21.1. That the learned Magistrate can in exercise of powers

under Section 156(3) of the Code order/direct the In-

charge/SHO of the police station concerned to lodge/register

crime case/FIR even for the offences under the MMDR Act

and the Rules made thereunder and at this stage the bar

under Section 22 of the MMDR Act shall not be attracted.

21.2. The bar under Section 22 of the MMDR Act shall be

attracted only when the learned Magistrate takes cognizance

of the offences under the MMDR Act and the Rules made

thereunder and orders issuance of process/summons for the

offences under the MMDR Act and the Rules made

thereunder.

21.3. For commission of the offence under IPC, on receipt of

the police report, the Magistrate having jurisdiction can take

cognizance of the said offence without awaiting the receipt of

complaint that may be filed by the authorised officer for taking

cognizance in respect of violation of various provisions of the

MMDR Act and the Rules made thereunder.

21.4. That in respect of violation of various provisions of the

MMDR Act and the Rules made thereunder, when a

Magistrate passes an order under Section 156(3) of the Code

and directs the In-charge/SHO of the police station concerned

to register/lodge the crime case/FIR in respect of the violation

of various provisions of the Act and the Rules made

thereunder and thereafter after investigation the In-charge of

the police station/investigating officer concerned submits a

report, the same can be sent to the Magistrate concerned as

well as to the authorised officer concerned as mentioned in

Section 22 of the MMDR Act and thereafter the authorised

officer concerned may file the complaint before the learned

Magistrate along with the report submitted by the

investigating officer concerned and thereafter it will be open

for the learned Magistrate to take cognizance after following

due procedure, issue process/summons in respect of the

violations of the various provisions of the MMDR Act and the

Rules made thereunder and at that stage it can be said that

cognizance has been taken by the learned Magistrate.

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21.5. In a case where the violator is permitted to compound

the offences on payment of penalty as per sub-section (1) of

Section 23-A, considering sub-section (2) of Section 23-A of

the MMDR Act, there shall not be any proceedings or further

proceedings against the offender in respect of the offences

punishable under the MMDR Act or any Rules made

thereunder so compounded. However, the bar under sub-

section (2) of Section 23-A shall not affect any proceedings

for the offences under IPC, such as, Sections 379 and 414

IPC and the same shall be proceeded with further.‖

79. The Government of Karnataka issued a notification on 21 January 2014 in

exercise of powers under Sections 21(3), 21(4) and 22 of the MMDR Act 1957 and

Rules 43(3) and 46 of the Karnataka Minor Mineral Concession Rules 1994. The

notification authorized officers/authorities for the purpose of Section 22. The text of

the authorization is extracted below:

Sl. No.

Designation of Officers/Authorities

Jurisdiction Department

(1) (2) (3) (4)

1 The Additional Director (mineral administration)

Whole of the State Department of Mines

and Geology

2 The Joint Director, South/North zones

Within their Jurisdiction

Department of Mines and Geology

3 Deputy Director (mineral

administration) Whole of the State


4 The Deputy Commissioner Respective Districts Revenue

Department

5 The Superintendent of

Police/ Police Commissioner Within their Jurisdiction

Police Department

6 The Deputy Conservator of

Forest Respective jurisdiction

Forest Department

7 The Deputy Superintendent

of Police Respective sub-

division Police Department

8 Deputy Director/Senior Within their Department of Mines

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Geologist jurisdiction and Geology

9 The Asst. Commissioner Respective sub-

division Revenue

Department

10 Geologists Within their jurisdiction


11 The Tahasildhar Respective Taluk Revenue

Department

12 The Circle Inspector/ Inspector of Police

Within their jurisdiction

Police Department

13 Sub-Inspector of Police Within their jurisdiction

Police Department

14 The Revenue Inspector Respective Hobilies Revenue

Department

15 The Range Forest Officers Respective Range Forest Department

(emphasis supplied)

80. The Government of Karnataka issued a notification on 29 May 2014 declaring

that the Office of the Inspector General of Police, Special Investigation Team,

Karnataka Lokayukta shall be a ‗police station‘ for the purpose of Section 2(s) and

shall have jurisdiction throughout the State of Karnataka for offences related to the

illegal mining of minerals. The FIR was filed by the SIT, Lokayukta pursuant to the

Order of this Court dated 16 September 2013 and was signed by the Sub-inspector

of Police, Karnataka Lokayukta. On a reading of the notification dated 29 May 2014,

it is evident that the SIT has the jurisdiction throughout Karnataka in relation to

mining offences. S.No. 13 of the Notification dated 21 January 2014 authorizes the

‗Sub-inspector of Police‘ within its jurisdiction for the purpose of Section 22 of the

MMDR Act. Therefore, on a combined reading of both the notifications, it is clear as

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day light that the complaint filed by SIT and signed by the Sub-Inspector of Police

has complied with Section 22 of the MMDR Act.

C.7 Vicarious liability and Section 23 of MMDR Act

81. A-1 submitted that the charge-sheet does not ascribe any role to A-1 and

hence the process initiated against him must be quashed. The appellants in support

of their argument relied on Sunil Bharati Mittal (supra), Shiva Kumar Jatia v. NCT

of Delhi60

, Sunil Sethi v. State of Andhra Pradesh61

and Ravindranatha Bajpe v.

Mangalore Special Economic Zone Ltd.62

In Sunil Bharati Mittal (supra), a three-

judge Bench of this Court observed that the general rule is that criminal intent of a

group of people who undertake business can be imputed to the Company but not

the other way around. Only two exceptions were provided to this general rule: (i)

when the individual has perpetuated the commission of offence and there is

sufficient evidence on the active role of the individual; and (ii) the statute expressly

incorporates the principle of vicarious liability. Justice Sikri writing for a three-judge

Bench observed:

―43. Thus, an individual who has perpetrated the commission

of an offence on behalf of a company can be made an

accused, along with the company, if there is sufficient

evidence of his active role coupled with criminal intent.

Second situation in which he can be implicated is in those

cases where the statutory regime itself attracts the doctrine of

vicarious liability, by specifically incorporating such a

provision.

44. When the company is the offender, vicarious liability of

the Directors cannot be imputed automatically, in the absence

60

(2019) 17 SCC 193 61

(2020) 3 SCC 240 62

2021 SCC OnLine 806

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of any statutory provision to this effect. One such example is

Section 141 of the Negotiable Instruments Act, 1881.

In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours

(P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012)

3 SCC (Cri) 241] , the Court noted that if a group of persons

that guide the business of the company have the criminal

intent, that would be imputed to the body corporate and it is in

this backdrop, Section 141 of the Negotiable Instruments Act

has to be understood. Such a position is, therefore, because

of statutory intendment making it a deeming fiction. Here also,

the principle of ―alter ego‖, was applied only in one direction,

namely, where a group of persons that guide the business

had criminal intent, that is to be imputed to the body corporate

and not the vice versa. Otherwise, there has to be a specific

act attributed to the Director or any other person allegedly in

control and management of the company, to the effect that

such a person was responsible for the acts committed by or

on behalf of the company.‖

Shiva Kumar Jatia (supra), Sunil Sethi (supra) and Ravindranatha Bajpe (supra)

also rely on this observation made in Sunil Bharati Mittal (supra).

82. Section 23(1) of the MMDR Act stipulates that where the offence has been

committed by a company, every person who at the time of the commission of the

offence was in-charge of and responsible for the conduct of business shall be

deemed to be guilty of the offence. The proviso stipulates that nothing contained in

sub-section (1) shall render such a person liable to punishment, if he proves that the

offence was committed without his knowledge or that he exercised all due diligence

of preventing the commission of the offence.

83. In SMS Pharmaceuticals v. Neeta Bhalla63

, a three-judge Bench while

construing the provisions of Section 141 of the Negotiable Instruments Act 1881,

63

(2005) 8 SCC 89

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which are in pari materia with Section 23 of the MMDR Act has noted that the

position of a Managing Director or a Joint Managing Director of a company is distinct

since persons occupying that position are in charge of and responsible for the

conduct of the business. It was observed that though there is a general presumption

that the Managing Director and Joint Managing Director are responsible for the

criminal act of the company, the director will not be held liable if he was not

responsible for the conduct of the company at the time of commission of the offence.

The Court observed:

―9. The position of a managing director or a joint managing

director in a company may be different. These persons, as

the designation of their office suggests, are in charge of a

company and are responsible for the conduct of the business

of the company. In order to escape liability such persons may

have to bring their case within the proviso to Section 141(1),

that is, they will have to prove that when the offence was

committed they had no knowledge of the offence or that they

exercised all due diligence to prevent the commission of the

offence.

[…]

Every person connected with the company shall not fall within

the ambit of the provision. It is only those persons who were

in charge of and responsible for the conduct of business of

the company at the time of commission of an offence, who

will be liable for criminal action. It follows from this that if a

director of a company who was not in charge of and was not

responsible for the conduct of the business of the company at

the relevant time, will not be liable under the provision. The

liability arises from being in charge of and responsible

for the conduct of business of the company at the

relevant time when the offence was committed and not

on the basis of merely holding a designation or office in a

company. Conversely, a person not holding any office or

designation in a company may be liable if he satisfies the

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main requirement of being in charge of and responsible for

the conduct of business of a company at the relevant time.‖

(emphasis supplied)

The same principle has been followed by a Bench of two judges in Mainuddin

Abdul Sattar Shaikh v. Vijay D Salvi64

:

―12. The respondent has adduced the argument that in the

complaint the appellant has not taken the averment that the

accused was the person in charge of and responsible for the

affairs of the Company. However, as the respondent was the

Managing Director of M/s Salvi Infrastructure (P) Ltd. and sole

proprietor of M/s Salvi Builders and Developers, there is no

need of specific averment on the point. This Court has held

in National Small Industries Corpn. Ltd. v. Harmeet Singh

Paintal [(2010) 3 SCC 330 : (2010) 1 SCC (Civ) 677 : (2010)

2 SCC (Cri) 1113] , as follows : (SCC p. 346, para 39)

―39. (v) If the accused is a Managing Director or a Joint

Managing Director then it is not necessary to make specific

averment in the complaint and by virtue of their position they

are liable to be proceeded with.‖

84. The test to determine if the Managing Director must be charged for the

offence committed by the Company is to determine if the conditions in Section 23 of

the MMDR Act have been fulfilled i.e., whether the individual was in-charge of and

responsible for the affairs of the company during the commission of the offence. In

view of the above decisions, the submissions which has been urged on behalf of the

appellant cannot be acceded to. The determination of whether the conditions

stipulated in Section 23 of the MMDR Act have been fulfilled is a matter of trial.

Moreover, it is evident that the charge sheet, as a matter of fact, ascribes a role to

A-1 and A-2 for the payment of transportation. Therefore, there is a prima facie case

against A-1, which is sufficient to arraign him as an accused at this stage.

64

(2015) 9 SCC 622

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D. The Conclusion

85. In view of the discussion above, we summarise our findings below:

(i) The Special Court does not have, in the absence of a specific provision to that

effect, the power to take cognizance of an offence under the MMDR Act

without the case being committed to it by the Magistrate under Section 209

CrPC. The order of the Special Judge dated 30 December 2015 taking

cognizance is therefore irregular;

(ii) The objective of Section 465 is to prevent the delay in the commencement

and completion of trial. Section 465 CrPC is applicable to interlocutory orders

such as an order taking cognizance and summons order as well. Therefore,

even if the order taking cognizance is irregular, it would not vitiate the

proceedings in view of Section 465 CrPC;

(iii) The decision in Gangula Ashok (supra) was distinguished in Rattiram

(supra) based on the stage of trial. This differentiation based on the stage of

trial must be read with reference to Section 465(2) CrPC. Section 465(2) does

not indicate that it only covers challenges to pre-trial orders after the

conclusion of the trial. The cardinal principle that guides Section 465(2) CrPC

is that the challenge to an irregular order must be urged at the earliest. While

determining if there was a failure of justice, the Courts ought to address it with

reference to the stage of challenge, the seriousness of the offence and the

apparent intention to prolong proceedings, among others;

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(iv) In the instant case, the cognizance order was challenged by the appellant two

years after cognizance was taken. No reason was given to explain the

inordinate delay. Moreover, in view of the diminished role of the committal

court under Section 209 of the Code of 1973 as compared to the role of the

committal court under the erstwhile Code of 1898, the gradation of irregularity

in a cognizance order made in Sections 460 and 461 and the seriousness of

the offence, no failure of justice has been demonstrated;

(v) It is a settled principle of law that cognizance is taken of the offence and not

the offender. However, the cognizance order indicates that the Special Judge

has perused all the relevant material relating to the case before cognizance

was taken. The change in the form of the order would not alter its effect.

Therefore, no ‗failure of justice‘ under Section 465 CrPC is proved. This

irregularity would thus not vitiate the proceedings in view of Section 465

CrPC;

(vi) The Special Court has the power to take cognizance of offences under

MMDR Act and conduct a joint trial with other offences if permissible under

Section 220 CrPC. There is no express provision in the MMDR Act which

indicates that Section 220 CrPC does not apply to proceedings under the

MMDR Act;

(vii) Section 30B of the MMDR Act does not impliedly repeal Section 220 CrPC.

Both the provisions can be read harmoniously and such an interpretation

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furthers justice and prevents hardship since it prevents a multiplicity of

proceedings;

(viii) Since cognizance was taken by the Special Judge based on a police report

and not a private complaint, it is not obligatory for the Special Judge to issue

a fully reasoned order if it otherwise appears that the Special Judge has

applied his mind to the material;

(ix) A combined reading of the notifications dated 29 May 2014 and 21 January

2014 indicate that the Sub-Inspector of Lokayukta is an authorized person for

the purpose of Section 22 of the MMDR Act. The FIR that was filed to

overcome the bar under Section 22 has been signed by the Sub-Inspector of

Lokayukta Police and the information was given by the SIT. Therefore, the

respondent has complied with Section 22 CrPC; and

(x) The question of whether A-1 was in-charge of and responsible for the affairs

of the company during the commission of the alleged offence as required

under the proviso to Section 23(1) of the MMDR Act is a matter for trial. There

appears to be a prima facie case against A-1, which is sufficient to arraign

him as an accused at this stage.

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86. For the reasons above, we find no merit in the appeals. The appeals shall

accordingly stand dismissed.

87. Pending application(s), if any, shall stand disposed of.

……..…….……………………………………….J [Dr Dhananjaya Y Chandrachud]

…….…..…….………………………………….J [Vikram Nath]

…….…..…….………………………………….J [B V Nagarathna]

New Delhi; November 29, 2021

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